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 first place. 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 go to help the court understand the issues you have been having?
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, there are statutes and case law that controls 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 and not both.
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 to 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, the conditions surrounding the child, which have or could have a significant effect on the child’s well-being, have materially changed. Any problems that existed prior to the last order that was entered are not relevant. In addition, the change must be not 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 have an effect on the child. An effect to one parent or the other will not be enough as the court looks at the best interests of the child. The court will determine each case on its fact and how those facts relate to the best interests of the child.
Change of circumstances is the requirement that clients struggle to understand fully. Some common substantial change 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 client is that the conditions that could have a significant effect on 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 on requested modification can be heard. This is the first step in seeking a modification in a current custody or parenting time order.