Your Judgment of Divorce has been entered with the court. But the entry of the Judgment of Divorce has not stopped the issues with your ex-spouse that led to the divorce. Now, you are being denied parenting time or being left in the dark on decisions about medical care, schooling, or childcare. How far back in time can you help the court understand the issues you have been having? Do you have a chance to have your custody order changed?
The courts are limited in what they can do by what the statutes and case law have said about modifying previous orders. For child custody and parenting time, statutes and case law control the actions and the sequence of those actions that a court can implement.
First, the courts are instructed by statute that a previously entered order cannot be modified unless proper cause or a change of circumstances has been shown. MCL 722.27(1)(c). The party seeking the modification only needs to show one or the other, not both.
The proper cause has been defined as an appropriate reason for the court to change custody currently exists. This would be something that is serious enough to have a significant impact on the child’s well-being. It would also be relevant to at least one of the best interests of the child factors. The moving party will likely have to prove their case by a preponderance of the evidence (51% certainty or more likely than not).
Change of circumstances requires proving that since the date of the last custody order, changes must be documented affecting the material conditions surrounding the child, which have or could have a significant effect on the child’s well-being. Any problems that existed before the last order that was entered are not relevant. In addition, the custody order change must not be one that can be seen as a normal life change in a child’s life, such as changing schools, participating in extracurricular events, or the other parent remarrying. Evidence must be presented that the change of circumstances has had or most certainly will affect the child. An effect on one parent or the other will not be enough as the court looks at the child’s best interests. The court will determine each case on its fact and how those facts relate to the child’s best interests.
Change of circumstances is a requirement that clients struggle to understand fully. Some common substantial changes of circumstances may include the following: a loss or gain of employment, a sudden change in either party’s finances, a relocation of the parties or children, or a death. The key phrase we emphasize to the client is that the conditions that could significantly affect the child’s well-being have materially changed. This means the change is not temporary or agreed to by the parties.
Understanding the two grounds for seeking a modification of an existing order leads us to the answer. Generally, the courts will only consider events that have happened since the entry of the last order to determine if the court will be able to decide if the requested modification can be heard. This is the first step in seeking a modification in a current custody or parenting time order. Visit our YouTube channel for more information on co-parenting, communication, and more.