By: Dennis M. Germain, Michigan Family Law Attorney & Counselor at Law
This article is Part 3 of a 3 Part series about legal rights associated with parenting time (a.k.a. parental visitation, physical custody, etc.) in Michigan. Part 1 addressed a parent’s legal right in Michigan to parenting time in specific terms. Part 2 addressed a parent’s right in Michigan to handle routine decision making during his/her parenting time. Finally, this article addresses the Michigan’s different legal standards between modifying “parenting time,” and “custody.”
AM I ASKING TO MODIFY CUSTODY OR PARENTING TIME?
This article applies to a parent who is already operating under a Judgment of Divorce, or Order of Custody and Parenting Time who wants to modify the custody arrangement. As a general rule, attempting to change custody is more difficult than attempting to modify parenting time. But what is the difference between a change of custody and a change in parenting time? To answer the above question, one must first understand the concept of the “established custodial environment.” MCL 722.27(1)(C) states:
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. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”
A change of custody is typically seen as a change in the custodial arrangement that alters the established custodial environment of the child. FN1. I.e., if a change in the custodial arrangement is so significant that it would alter who the child looks to for guidance, discipline, the necessities of life, and parental comfort, then that change is likely to be classified as a change in custody. A change of parenting time can be seen as a change in the custody arrangement that does not have the effect of altering the established custodial environment. FN2.
A very simplified (quite possibly overly simplified) way of looking at the situation is to assume that if you are looking for a lot more time with your child then you might be asking for a change in custody. But if you are asking for a little bit more time with your child, then you might be asking for a change in parenting time.
While the law does not allow one to merely look at the number overnights to decide whether the established custodial environment is being changed, I nonetheless conducted an informal poll with fellow family law attorneys throughout Michigan. The poll was based on a hypothetical situation where a father currently had 84 overnights of parenting time. In the poll I asked, “If you were to create a clear line for when a modification transforms from a change of parenting time to a change of custody, where would that line be for the father?” I received all sorts of responses, but the average number was around 150 overnights. In other words, according to the results of the informal poll, if the father was asking to increase his visitation to 149 overnights or anything less, that would be a mere change of parenting time. But if the father was asking to increase his visitation to 151 or anything more, that would be a change of custody.
Again, the significance of this matter is that trying to modify parenting time is much easier than trying modifying custody. Below I offer the differing legal standards when dealing with modifying custody versus parenting time.
WHAT MUST I SHOW TO GET THE COURT TO REVISIT THE CUSTODIAL ARRANGEMENT?
To deter parents from filing frivolous motions to modify custody every other week, before the court will even entertain a parent’s request to modify custody or parenting time, the parent must meet the initial threshold of showing the court that “proper cause or change of circumstances” exists to warrant re-review of the custodial arrangement. FN3. If a party cannot satisfy this burden, no review to modify may be conducted.
INITIAL THRESHOLD TO MODIFY CUSTODY
When it comes to a prospective change in custody, to establish a “change of circumstances,” a movant 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. FN4. “Proper cause” alone can also serve as a basis for modification. FN5. Proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken and the grounds should be relevant to at least one of the twelve statutory best interest factors in MCL 722.23. FN6.
INITIAL THRESHOLD TO MODIFY PARENTING TIME
Parenting time changes operate at a lower threshold than custody changes. For parenting time, a more expansive definition of PCOCOC is necessary, because the objectives are different. FN7. The same normal life changes inadequate to warrant a custody change are exactly the types of considerations to consider when addressing a parenting time change. FN8. Where the primary concern with custody is the stability of the child’s environment and avoidance of unwarranted changes, the focus of parenting time is to foster a strong relationship between the child and its parents. FN9. When analyzing whether PCOCOC to modify parenting time exists, the child’s age may be taken into consideration. However the parent trying to modify parenting time must show that there are “practical implications” to the child growing older that justify modification of the parenting time arrangement. FN10. A parent should be ready to show how the child’s needs are not sufficiently being met by the current parenting time arrangement. FN11.
WHAT STANDARD IS THE COURT USING TO ANALYZE THE PROPOSED CHANGE ?
If and only if a parent is able to make a finding of proper cause or change of circumstances, the court shall revisit whether modifying custody or parenting time is appropriate. The burden of proof to modify rests on the parent seeking to modify. If a parent is trying to modify custody (i.e., alter the established custodial environment), that parent must show by “clear and convincing evidence” that modification is in the best interests of the child. FN12. Clear and convincing evidence is a high standard to meet. If a parent is merely trying to modify parenting time, that parent must show by a “preponderance of the evidence” that modification is in the best interests of the child. FN13. The preponderance of the evidence standard is a lower standard to meet.
When analyzing whether modifying custody is appropriate, the Court is required to review the 12 best interest factors of MCL 722.23, listed as follows:
(a) The love, affection, and other emotional ties existing between the parties involved and the child. (b) 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. (c) 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 this state in place of medical care, and other material needs. (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (e) The permanence, as a family unit, of the existing or proposed custodial home or homes. (f) The moral fitness of the parties involved. (g) The mental and physical health of the parties involved. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (j) 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. (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
ANALYZING PARENTING TIME
When analyzing whether modifying parenting time is appropriate, the Court is required to review the 12 best interest factors of MCL 722.23 AND the court also has the option of reviewing the 9 parenting time factors of MCL 722.27a, listed as follows:
(a) The existence of any special circumstances or needs of the child. (b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing. (c) The reasonable likelihood of abuse or neglect of the child during parenting time. (d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time. (e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time. (f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order. (g) Whether a parent has frequently failed to exercise reasonable parenting time. (h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent. (i) Any other relevant factors.
If the matter is referred to a Friend of the Court custody investigator, the investigator is required to review the parenting time factors. FN14.
To summarize, when a parent wants to modify the custodial arrangement (i.e., increase his/her time with the child and/or decrease the other parent’s time with the child), the parent should understand the distinctions between changing custody versus changing parenting time. As a general rule, changing custody is much more difficult to do than modifying parenting time.
FN1 – E.g., see Pierron v. Pierron, 486 Mich. 81, 92; 782 NW2d 480 (2010); MCL 722.27(1)(c).
FN2 – E.g. see Shade v Wright, 291 Mich App 17, 23-24; 805 NW2d 1 (2010).
FN3 – MCL 722.27(1)(c).
FN4 – Vodvarka v Grasmeyer, 259 Mich App 499, 513, 675 NW2d 847 (2003).
FN5 – See Douglas v Eaton, Unpublished per curiam Michigan Court of Appeals, Decided May 25, 2010, Docket No. 294177; and Jones v Giannoti, Unpublished, Michigan Court of Appeals, Decided July 17, 2007, Docket No. 266568.
FN6 – Bonnell v Bonnell, Unpublished per curiam Michigan Court of Appeals, Decided May 13, 2014, Docket No. 318445.
FN7 – Shade v Wright, 291 Mich App 17, 28; 805 NW2d 1 (2010).
FN8 – Id at 31.
FN9 – Id at 28-29.
FN10 – Ulloa v Lafave, Unpublished, Michigan Court of Appeals, Decided February 23, 2012, Docket No. 301955 at Lexis *9.
FN11 – Id.
FN12 – E.g., see Pierron v. Pierron, 486 Mich. 81, 92; 782 NW2d 480 (2010); MCL 722.27(1)(c).
FN13 – E.g. see Shade v Wright, 291 Mich App 17, 23-24; 805 NW2d 1 (2010).
FN14 – MCL 552.505.
Please note that this article is intended to be academic in nature. Its purpose is to serve as a memorialization of research as well as invoke community discussion. This article shall not constitute legal advice. It does not create an attorney-client relationship. Legal advice should be given on a case-by-case basis, as its accuracy is relative to the timing and particular facts of the given matter. It is important to always consult an attorney regarding legal matters. ******************************************************************************
I am Dennis M. Germain, a Michigan family law attorney who promotes fair resolutions to domestic relations matters. I primarily practice in Macomb County, Wayne County, and Oakland County, Michigan. My office is in Shelby Township, Michigan. My office and contact information is listed as follows:
Best Interest Law
48639 Hayes Road, Suite A
Shelby Township, MI 48315
Ph: (586) 219-6454
Fax: (586) 439-0404
Macomb County Family Law Attorney, Shelby Township parenting time, decision-making, best interest factors, Macomb County custody, custody, Shelby Township visitation, routine matters, Macomb County parenting time, Macomb county visitation, change custody, Shelby Township custody, MCL 722.23, MCL 722.27a, Child Custody Act, Shade v Wright, Vodvarka, custody lawyer, modify custody, custody of my child
Modifying custody versus modifying parenting time; by Macomb County family law attorney, Dennis Germain.