How can a parent modify a prior custody order?

Non-custodial parents want to know what the courts will consider as sufficient evidence to warrant modifying an existing custody order. It’s well-established that the court will not re-visit a previous custody determination unless the party requesting the custody modification can prove that there has been a change in circumstances or good cause arising since the most recent custody order.

Parents ask: What does that mean? It’s become well-established that it means this:

 

To establish a change of circumstances, the party moving for a change in custody must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child's well-being, have materially changed. And the change must be significant; "the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.

The result in every one of these cases will depend upon its unique facts. A frequent area of dispute is “what is a normal life change?” A recent case offers another look at that question. In Milner v. Milner, [unpublished, docket no. 398998] decided July 10, 2008, the COA said that these were "normal life changes," insufficient to merit reconsideration of the prior custody order:”

1.  Defendant mother moved residences and changed jobs to be close to the children. The COA said this was “completely irrelevant.”  The trial court did not express any concern about her prior home or job.
2.  Further, the fact plaintiff father relied on a babysitter to care for the children one hour in the afternoon and on the work day during summer vacation was a normal situation any child might face.
3.  Although apparently the defendant was concerned about the children’s school performance, the court said that the evidence presented made it clear the children's school performances only changed for the better after the 2006 custody order.
4.  Defendant claimed that the children were fearful in plaintiff's home. The COA said this was rebutted by the family counselor treating plaintiff and the children.
5.  In addition, the trial court and COA noted that the children reported their unhappiness in plaintiff's home and dislike of their stepmother before the 2006 custody order was entered, and for whatever reason, the trial court had earlier rejected their complaints.

Therefore, since defendant failed to establish a change in circumstances of good cause that could overcome her threshold requirement, the trial court was not required to conduct a hearing or consider the best interest factors.
 
You may read Milner v. Milner here.

For a slightly different result, see discussions of Roodvoets v Royce and Lundquist v Lundquist. where a parent's past history did hurt her.

For more on whether you'll be entitled to a hearing on the best interests of the child,  Dumm v Brodbeck, Docket No. 274600, which is unpublished.

For more information concerning your rights in a custody trial, visit Jeanne Hannah's website www.traversecityfamilylaw.com

Need help with a post-judgment child custody issue?

 

Comments

[Doug Dante]

Given the legal barriers that parents face to change a custodial environment previously established by the court, it is crucial that the initial custody determination be as respectful of the due process rights of both parents as possible.

Sadly, in Michigan, this isn't always the case. A recent child custody survey (disclaimer: I conducted it) shows serious failures throughout the custody process, including mediation. ( http://tinyurl.com/623d5r )

While it may be possible for a parent to obtain justice in an imperfect system ( http://tinyurl.com/69mblv and http://tinyurl.com/6ghwdm ), children, parents, and the public at large are all better off when the system works well by default.