Modifying Existing Child Custody Orders

Once a child custody order is established with a Michigan Family Court, the Child Custody Act authorizes a court to modify the existing order only “for proper cause shown or because of a change of circumstances,” and only if the modification is in the child’s best interest. MCL 722.27. Such requirements for modifying child custody orders exist until the child reaches 18 years of age and is thus no longer under the jurisdiction of the Court. Procedurally, any parent’s request to change a previously entered custody order must go through a three-step process.

Establishing Proper Cause or a Change in Circumstances

First, in order for a Michigan court to even consider a request to change custody, the parent must establish “proper cause” or a sufficient “change of circumstances.” The Court of Appeals in Michigan has ruled that whether or not proper cause or a change of circumstances exists is a threshold matter to be decided by the court. Vodvarka v Grasmeyer, 259 Mich App 499 (2003).

The petitioning parent must establish the claimed proper cause or change of circumstances by a preponderance of the evidence. If no proper cause or change of circumstances exists, the court is precluded from moving any further in evaluating the requested change, and the petition must be denied.

Determining the Burden of Proof

Next, assuming that proper cause or a change in circumstances has been established, the Court must determine the petitioning parent’s burden of proof in moving forward by determining whether or not an “established custodial environment” exists. Pursuant to MCL 722.27(c):

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.

In Michigan, if the court determines that an established custodial environment exists, then the burden in moving forward is heightened, and a change in custody can only occur upon clear and convincing evidence that the change would be in the best interests of the child. If there is no established custodial environment, then the burden is lowered, and a preponderance of the evidence would be sufficient for the Court to award a change in custody.

Michigan Courts Must Evaluate the Requested Change

Finally, once the parent has established proper cause or a sufficient change of circumstances, and the proper burden of proof has been determined, the Court must evaluate the requested change of custody in light of the child custody best interest factors. If, following a review of all of the factors, and the reasons being stated on the record, the Court finds that a change of custody would be in the child’s best interests, the Court may then change the custody arrangements awarded in the prior order.