A parenting time order granted by the circuit court may be revisited by the parties involved because the needs of the child and the desires of the parents change over time. As children get older, parenting time is generally more beneficial with fewer but longer periods of time as opposed to shorter yet more frequent periods for younger children. Furthermore, the schedule of the child changes and becomes full of school and extracurricular activities, so outdated parenting time orders need to be tweaked and adapted. Finally, the parent may want to modify parenting time orders because the situation at the other parent’s home has deteriorated.
This blog article will explain the legal basis and procedure in Michigan for modifying a parenting time order, although whether or not a change is justified depends on the facts and circumstances of any individual case and the judge presiding over it.
PARENTING TIME ORDERS GENERALLY
“Parenting time shall be granted in accordance with the best interests of the child. It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” MCL 722.27a(1). ‘[P]arenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.” Id. “If the parents of a child agree on parenting time terms, the court shall order the parenting time terms unless the court determines on the record by clear and convincing evidence that the parenting time terms are not in the best interests of the child.” MCL 722.27a(2).
“A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health.” MCL 722.27a(3). If a child is conceived due to criminal sexual assault by the other parent that he or she is later convicted of (or is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration), then that parent shall not be granted any parenting time unless, after the date of conviction or the date of the fact-finding hearing, the biological parents cohabit and establish a mutual custodial environment for the child. MCL 722.27a(4). Likewise, if a parent is convicted of criminal sexual conduct and the victim is the individual’s child, then the court shall not grant parenting time with that child or a sibling of that child to that individual, unless both the child’s other parent and, if the court considers the child or sibling to be of sufficient age to express his or her desires, the child or sibling consent to the parenting time. MCL 722.27a(5).
The court may consider the following nine parenting time factors when determining the frequency, duration, and type of parenting time to be granted:
- “The existence of any special circumstances or needs of the child.” MCL 722.27a(7)(a).
- “Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.” MCL 722.27a(7)(b).
- “The reasonable likelihood of abuse or neglect of the child during parenting time.” MCL 722.27a(7)(c).
- “The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.” MCL 722.27a(7)(d).
- “The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.” MCL 722.27a(7)(e).
- “Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.” MCL 722.27a(7)(f).
- “Whether a parent has frequently failed to exercise reasonable parenting time.” MCL 722.27a(7)(g).
- “The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.” MCL 722.27a(7)(h).
- “Any other relevant factors.” MCL 722.27a(7)(i).
A parenting time order may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time by a parent, including 1 or more of the following:
- “Division of the responsibility to transport the child.” MCL 722.27a(9)(a).
- “Division of the cost of transporting the child.” MCL 722.27a(9)(b).
- “Restrictions on the presence of third persons during parenting time.” MCL 722.27a(9)(c).
- “Requirements that the child be ready for parenting time at a specific time.” MCL 722.27a(9)(d).
- “Requirements that the parent arrive for parenting time and return the child from parenting time at specific times.” MCL 722.27a(9)(e).
- “Requirements that parenting time occur in the presence of a third person or agency.” MCL 722.27a(9)(f).
- “Requirements that a party post a bond to assure compliance with a parenting time order.” MCL 722.27a(9)(g).
- “Requirements of reasonable notice when parenting time will not occur.” MCL 722.27a(9)(h).
- “Any other reasonable condition determined to be appropriate in the particular case.” MCL 722.27a(9)(i).
Parenting time orders can be stated in general terms and provide that a parent is entitled to receive “reasonable and liberal” parenting time as the parties agree, or they can outline a specific schedule for the parents to follow. If there is an existing order stated in general terms, “[p]arenting time shall be granted in specific terms if requested by either party at any time.” MCL 722.27a(8).
PROPER CAUSE AND CHANGE OF CIRCUMSTANCES REQUIRED TO BE SHOWN IN A MOTION TO MODIFY PARENTING TIME
The circuit court may “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age.” MCL 722.27(1)(c). “The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” Id. “The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” Id. “The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”
In Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003), with respect to child custody modifications, the Michigan Court of Appeals held that:
“[T]o establish ‘proper cause’ necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors.” Vodvarka, 259 Mich App at 513.
“[I]n order to establish a “change of circumstances,” a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. Again, not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. This too will be a determination made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors.” Vodvarka, 259 Mich App at 513-514.
The twelve best interests of the child factors referred to in Vodvarka are the sum total of all of the following found in the Child Custody Act:
- “The love, affection, and other emotional ties existing between the parties involved and the child.” MCL 722.23(a).
- “The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.” MCL 722.23(b).
- “The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.” MCL 722.23(c).
- “The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.” MCL 722.23(d).
- “The permanence, as a family unit, of the existing or proposed custodial home or homes.” MCL 722.23(e).
- “The moral fitness of the parties involved.” MCL 722.23(f).
- “The mental and physical health of the parties involved.” MCL 722.23(g).
- “The home, school, and community record of the child.” MCL 722.23(h).
- “The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.” MCL 722.23(i).
- “The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.” MCL 722.23(j).
- “Domestic violence, regardless of whether the violence was directed against or witnessed by the child.” MCL 722.23(k).
- “Any other factor considered by the court to be relevant to a particular child custody dispute.” MCL 722.23(l).
Proper cause and change of circumstances is a threshold issue that must be established before the court can move forward on a motion to modify an existing custody order. If proper cause or change of circumstances exists, the moving party has a right to a full evidentiary hearing where the judge must decide if it is in the best interests of the child to modify custody. If proper cause or change of circumstances do not exist, then the motion must be denied.
However, in Shade v Wright, 291 Mich App 17; 805 NW2d 1 (2010), the Michigan Court of Appeals determined that a different standard should apply for proper cause and change of circumstances if the modification of a court order does not change the established custodial environment but instead amounts to a change in the duration or frequency of parenting time:
“The Vodvarka definitions of ‘proper cause’ and ‘change of circumstances’ are inapplicable to this case, in part, because the rationale for imposing more stringent constructions on the terms ‘proper cause’ and ‘change of circumstances’ with respect to custody determinations is far less applicable with respect to parenting time determinations. With respect to child custody disputes, [t]he goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances. Providing a stable environment for children that is free of unwarranted custody changes … is a paramount purpose of the Child Custody Act….”. Therefore, in the context of a child custody dispute, the purpose of the proper cause or change of circumstances requirement is to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Shade, 291 Mich App at 28.
“The facts of this case present circumstances which, under Vodvarka, would not, and should not, constitute a sufficient change of circumstances to warrant a change of custody. Simply put, the minor child in this case is growing up; she is a freshman in high school and her school and extra-curricular schedules are changing. The existing parenting schedule precluded the minor child from participating in certain activities. These are the type of normal life changes that occur during a child’s life and that do not warrant a change in the child’s custodial environment. However, in this case, we find that, given the geographical distance between the parties and the time necessary to transport the minor child from Ohio to Michigan to permit defendant to exercise his parenting time, such changes do constitute proper cause or change of circumstances sufficient to modify parenting time to permit the child to engage in social activities and participate in extra-curricular activities, so long as the modification in parenting time does not affect the established custodial environment.” Shade, 291 Mich App at 29-30.
“Thus, the very normal life change factors that Vodvarka finds insufficient to justify a change in custodial environment are precisely the types of considerations that trial courts should take into account in making determinations regarding modification of parenting time. Therefore, we hold that, in a case where a modification of parenting time does not alter the established custodial environment, the fact that a child has begun high school and seeks to become more involved in social and extra-curricular activities (normal life changes that do not constitute a change of circumstances under Vodvarka) constitutes a change of circumstances sufficient to modify parenting time. In this regard, we note the fact that the parties in this case live in different states, requiring significant travelling time for the minor child to accommodate defendant’s exercise of parenting time, is significant. With our holding today, we do not seek to precisely define the proper cause or change of circumstances necessary to change parenting time. Our holding is limited to our conclusion that the normal life changes that occurred with the minor child in this case are sufficient to modify parenting time.” Shade, 291 Mich App at 30-31.
However, if the parent is merely trying to modify a condition of parenting time (e.g. any of the factors listed in MCL 722.27a(9)), then an even less stringent standard applies. The Michigan Court of Appeals determined in Kaeb v Kaeb, 309 Mich App 556; 873 NW2d 319 (2015) that the threshold determination for proper cause or change or circumstances to modify a parenting time condition is whether that condition in its current form does not satisfy the child’s best interests:
“Because the imposition, revocation, or modification of a condition on the exercise of parenting time will generally not affect an established custodial environment or alter the frequency or duration of parenting time, we are persuaded that a lesser, more flexible, understanding of ‘proper cause’ or ‘change in circumstances’ should apply to a request to modify or amend a condition on parenting time. As in Shade, it is evident that even normal changes to the lives of the parties affected by a parenting-time order may so alter the circumstances attending the initial imposition of a condition that a trial court would be justified in revisiting the propriety of the condition. A condition that was in the child’s best interests when the child was in elementary school might not be in the child’s best interests after he or she reaches high school. Even ordinary changes in the parties’ behavior, status, or living conditions might justify a trial court in finding that a previously imposed condition is no longer in the child’s best interests. We conclude that “proper cause” should be construed according to its ordinary understanding when applied to a request to change a condition on parenting time; that is, a party establishes proper cause to revisit the condition if he or she demonstrates that there is an appropriate ground for taking legal action. We hold, consistently with a trial court’s authority to adopt, revise, or revoke a condition whenever it is in the best interests of the child to do so…, that a party requesting a change to an existing condition on the exercise of parenting time must demonstrate proper cause or a change in circumstances that would justify a trial court’s determination that the condition in its current form no longer serves the child’s best interests.” Kaeb, 309 Mich App at 571-572 (internal citations deleted).
STANDARD OF PROOF AT THE EVIDENTIARY HEARING ON PARENTING TIME MODIFICATION
After there has been a determination that the proper cause threshold has been met, the trial court may order the Friend of the Court “[t]o investigate all relevant facts, and to make a written report and recommendation to the parties and to the court, regarding… parenting time.” MCL 552.505(1)(g). However, the trial court cannot use a Friend of the Court investigation to find proper cause or change of circumstances and rely on the report to make that determination, for the court must first make these findings before an investigation can even be ordered. Bowling v McCarrick, 318 Mich App 568, 571; 899 NW2d 808 (2016).
At the evidentiary hearing, the burden of proof that the parent filing the motion must bear depends on whether the parenting time modification will alter the established custodial environment of the child:
- “[W]hen the child has an established custodial environment with each parent, the movant must prove by clear and convincing evidence that the proposed change is in the best interests of the child.” Lieberman v Orr, 319 Mich App 68, 83-84; 900 NW2d 130 (2017). “[W]hen the proposed parenting-time change alters the established custodial environment, the proposal is essentially a change in custody, and Vodvarka” Lieberman, 319 Mich App at 84. The movant must prove the twelve best interests of the child factors under MCL 722.23 by clear and convincing evidence. The court must evaluate all the best-interest factors, not just those related to the contested issues.
- “In a parenting-time matter, when the proposed change would not affect the established custodial environment, the movant must prove by a preponderance of the evidence that the change is in the best interests of the child.” Lieberman, 319 Mich App at 84. The movant must prove those parenting time factors under MCL 722.27a(9) that are contested by a preponderance of the evidence.
All of the Michigan Rules of Evidence apply to these evidentiary hearings, including the standards regarding hearsay evidence. The moving party must prove their case with legally admissible evidence through proper witnesses and documentation.
In an effort to provide stability and finality for the minor child, decisions regarding custody and parenting time made by the trial court are subject to a higher standard of review if they are to be revisited by an appellate court. Any orders concerning modifications of parenting time must be affirmed on appeal unless “the trial court made factual findings against the great weight of the evidence, committed a palpable abuse of discretion, or made a clear legal error on a major issue.” Shade, 291 Mich App at 20-21.
FILING OR DEFENDING A MOTION TO MODIFY PARENTING TIME CAN BE A DAUNTING TASK, BUT OUR SKILLED FAMILY LAW LAWYERS ARE AVAILABLE TO ASSIST YOU
Our law firm has the knowledge and expertise to advise you and navigate your case through the confusing statutes and rules regarding modifications of both child custody and parenting time.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.