How Do I Change Custody and Parenting Time?
Here at the Bloomfield Family Law Firm, we get a lot of calls from parents wanting to change their custody and parenting arrangement because, “It just doesn’t work anymore.” This makes sense, after all, as your children are growing up and bound to go through changes that don’t quite fit with the custody plan developed years prior. What’s a parent to do?
This blog addresses the issue of changing custody and parenting time post-judgment, which means after the entry of a final custody order like a Judgment of Divorce. These materials are intended to be a helpful guide to answer some of your basic questions. Please call us to schedule a consultation if you have any questions or concerns about your post-judgment custody situation.
Step 1: Do the parents agree?
The first step with any custody issue is to find out where you stand with the other parent. Do you both agree that custody and parenting time needs to change? Do you both agree on what that change should look like? These are always the first questions because they determine how to proceed.
The cheapest and easiest way to change custody and parenting time post-judgment is for the parents to come to an agreement without court intervention. If the parties agree, they can simply go ahead and implement the new plan. Of course, the best practice in this scenario is to get the new agreement in writing – especially if the agreement benefits you. Ask an attorney to draft a stipulated order to amend custody and parenting time, and file it with the court as soon as possible. This will set the stage nicely for any future legal proceedings because it makes everyone’s intentions clear by fully documenting the agreement.
If the parents do not agree on amending custody and parenting time, then the parent who wants the change must submit their request to the court and clearly state why the change is warranted. The standard of proof will depend on the type of request being made (change in custody versus change in parenting time) and how it effects the child’s best interests. The best practice in this scenario is to hire an attorney to draft the motion, as it will save you time and money in the long run by doing it right the first time.
Step 2: Is there proper cause or change in circumstance?
To change custody and parenting time post-judgment, the moving party must show proper cause or a change in circumstance. The standard of proof will be stricter for changes in custody than for changes in parenting time. This is because “physical custody” typically refers to the child’s primary residence, while parenting time refers to the non-custodial parent’s visitation with the minor child. In other words, there is a big difference between changing where the child lives and having a few extra overnights per year.
Be sure to consult an attorney to determine if your situation meets the “proper cause or change in circumstance” standard, as motions that do not meet this standard will be dismissed without moving to the next step.
Step 3: Does the proposal alter the Established Custodial Environment?
The next step is to analyze who has the Established Custodial Environment (ECE) and whether the proposed change alters it in any way.
A custodial environment is established if, over an appreciable time, the child naturally looks to the parent in that environment for guidance, discipline, the necessities of life, and parental comforts. Other considerations include the age of the child, the physical environment, and the inclination of the custodian and the child as to the permanency of the relationship. Therefore, the ECE might be with one parent or with both parents, depending on the situation.
The ECE is important because it creates stability and continuity in a child’s life. It makes sense, then, that the court would want to protect it. This is why there must be clear and convincing evidence that a change to the ECE is in the child’s best interests. Conversely, a proposal that does not disrupt the ECE requires only a preponderance of the evidence that it is in the child’s best interests. This is an easier standard to meet because we want the parties to have some level of flexibility when the ECE is not at stake.
As a general rule of thumb, a request to modify parenting time will not typically upset the ECE unless that request is significant (meaning it’s actually a change of custody without saying so). Again, it is best to have an attorney review your situation because the courts do not take kindly to custody motions disguised as parenting time requests.
Step 4: Is the proposed change in the child’s best interests?
The final step is for the court to determine if the proposed change is in the best interests of the child by reviewing the following factors:
The love, affection, and other emotional ties existing between the parties involved and the child.
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.
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 Michigan in place of medical care, and other material needs.
The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
The permanence, as a family unit, of the existing or proposed custodial home or homes.
The moral fitness of the parties involved.
The mental and physical health of the parties involved.
The home, school, and community record of the child.
The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
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.
Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
Any other factor considered by the court to be relevant to a particular child custody dispute.
The court will grant a proposed change determined to be in the best interests of the child. For this reason, a well-prepared motion should present evidence on every factor for each child. This is why it is so important to provide your attorney with organized, factual information from the start of the case.
Questions or Concerns?
Our family law attorneys at the Bloomfield Family Law Firm are experienced in litigating custody matters of all shapes and sizes. Allow us to protect your parental rights by calling to set up a consultation where we can discuss the specifics of your case.
