When and How to Modify Custody and Parenting Time

Father buckling his kids into their car seats - modifying parenting time concept

When Michigan families outgrow their custody and parenting time orders, it can put pressure on parents and children alike. But not every change needs to result in a motion filed in court. Here is a guide to how Michigan family courts consider requests to modify custody and parenting time, so you can decide when and how to file your request.

Reasons to Change Parenting Time in Michigan

There are many reasons to change parenting time and even custody in Michigan. No two families are the same. Your needs, and the needs of your children, may change over time so that an order entered long ago no longer fits your circumstances. Some common reasons to change parenting time could be (depending on the details of the circumstances):

  • Relocation of either parent
  • Remarriage or introduction of a new partner
  • Change of schools
  • Disciplinary issues
  • Participation in extracurricular activities
  • Changes in work location or schedules
  • Mental health problems (for the child or parent)
  • Drug or alcohol use by a parent (or child)
  • Safety concerns
  • Repeated disagreements over medical care, education, or religious upbringing
  • Any other issues affecting the child’s well-being

Unpaid Child Support is Not a Reason to Change Custody

There is one thing that Michigan courts have held is not a reason to change custody or withhold parenting time: unpaid child support. Unfortunately, many parents see child support and parenting time as linked. They may withhold payments if they are being denied parenting time, or threaten to change custody if child support isn’t paid. But the Michigan Courts have said that both child support and parenting time with both parents are rights of the children, not the parents. If you file a motion to modify custody or parenting time based solely on unpaid support, your motion will generally be denied.

Proper Cause and Change in Circumstances: The Threshold to Modify Custody and Parenting Time in Michigan

To keep kids from being caught in the middle, parents can only file motions to modify child custody and parenting time based on “proper cause or a change in circumstances” related to the child’s welfare or environment. A milestone Michigan Court of Appeals case, Vodvarka v Grasmeyer, says the question of whether there is proper cause or a change of circumstances is a “threshold issue” a parent must be able to overcome before the Court may review facts related to custody and parenting time. The moving parent must make an “offer of proof” as to the proper cause or change of circumstances in their motion, and if the court does not believe the offer of proof is sufficient, the motion will be denied.

Proper cause means an appropriate ground for legal action that has, or could have, a significant effect on one of the twelve best interest factors used to determine child custody.

A change in circumstances is a material change in the conditions surrounding custody of the child since the last order was entered that could have a significant effect on the child’s well-being.

While both motions to modify custody and motions to change parenting time require either proper cause or a change in circumstances, the Michigan courts set the threshold higher to change custody than to adjust parenting time. According to Vodvarka, normal life changes (like changing schools, enrolling in extracurricular activities, or a parent getting a new job) aren’t enough to change custody. However, another case, Shade v Wright, says that those normal life changes can be enough to adjust a family’s parenting time schedule.

A third case, Kaeb v Kaeb, applies specifically to conditions placed on parenting time. It says those conditions can be changed or removed if the moving party can show they no longer serve the child’s best interests.

Who Has the Established Custodial Environment?

The next step is to determine which parent or parents has an established custodial environment with the child. At this stage, the Court will ask which parent (or parents) the child looks to for “guidance, discipline, the necessities of life, and parental comfort.” This is a factual determination. It doesn’t matter what your last court order says. Instead, it focuses on the age of the child, the physical environment, and the permanency of the relationship between parent and child.

If the requested change in parenting time or custody would interfere with an established custodial environment with either parent, the parent requesting it will have to work harder to prove their case. This is not a “threshold” in the same way as step 1. However, it does raise the burden of proof, requiring the moving party to convince the court by “clear and convincing evidence” rather than merely tipping the scales in favor of the change by a “preponderance of the evidence.”

What is in Your Children’s Best Interests?

Once the burden of proof is set, the Court will then consider evidence related to the twelve best interest factors. Not every change will involve evidence on every factor. However, if your custody and parenting time modification makes it to an evidentiary hearing, you should be prepared to give your Family Court judge a clear picture of the child’s day-to-day life, your role in their care, and your concerns about the current custody arrangement. Your child custody attorney can help you make the case for your requested modification, and explain why it is in the best interest of your children.

How to Change Parenting Time in Michigan Without Going to Court

Filing a motion to modify parenting time in court is a time-consuming process. Not every family needs to go through all that, especially for small changes to a family’s parenting time schedule.

Unfortunately, many parents make informal adjustments to parenting time – for example, switching the night of a midweek overnight – without notifying the courts. When a motion to enforce that switch is filed later, it can be a question of credibility whether the Judge will believe you ever made the change. If you and your co-parent notified the Friend of the Court of the change in writing at the time of your agreement, there is a better chance it will be enforced by the Courts should one of you change your mind later on. A family law attorney can also help you negotiate a change in parenting time without going to court, formalize your agreement, and make sure it doesn’t contradict any other court orders. That way everyone, including your child, is protected if relations break down later on.

Get Help Modifying Parenting Time and Custody Orders

Your children’s needs for custody and parenting time can change over time. When they do, you may need to negotiate or file a motion to enter a new custody and parenting time order that aligns with their best interests. At NSSSB, our Ann Arbor family law attorneys help parents keep the focus on their kids, negotiate modifications to benefit everyone involved, and craft legal arguments to modify custody and parenting time that reflect your needs and your child’s best interests. Click here to schedule a consultation with one of our experienced attorneys.

Categories: Child Custody