Changing Custody and/or Parenting Time: Post Judgment Custody Litigation

When a couple who have minor children divorce, the issues of Custody and Parenting Time are inevitably at issue. Custody involves deciding which parent will have the legal authority to make decisions for the couple’s child, including such things as doctor visits, school activities, and so on. Custody can be sole, that is, only vested in one of the parents, or joint, in which case the parents share this responsibility and are required to work together and communicate together on important decisions that affect the child.

Parenting Time is different from custody; it is the framework that governs when one of the parents “has” the child, how often, and on which schedule. Parenting Time is generally shared by the two parents except in unusual circumstances, however, the amount of time and how the time is divided between the parents is often unique to the parents’ situation and schedule, and may be decided and agreed to by the divorcing couple themselves. Both issues of Custody and Parenting Time are included in the Judgement of Divorce, which is a court order on how the couple will handle parenting their child moving forward.

In the perfect world, the Judgment of Divorce (JOD) includes the perfect parenting situation and will work for the parents until the child turns 18. But what happens if the terms of the JOD don’t work out? Can Custody and/or Parenting Time be changed or modified? The simple answer is maybe.

Standards for Modifying Custody or Parenting Time

Custody Modifications

Custody can be difficult to modify. Modifying a custody arrangement may mean changing from “sole legal custody” with one parent, to “joint legal custody”; it might mean going from “sole” with one parent to the other parent, or from “joint” to “sole” with a parent. In any of these cases, the standard for such change was established in a landmark case Vodvarka v. Grasmeyer, 259 Mich App 499, 511 (2003). In Michigan, a trial court may modify its previous orders or judgments relating to child custody only if the moving party first meets a threshold finding of proper cause or change in circumstances. According to Vodvarka, the party must demonstrate that there is “one or more appropriate grounds that have or could have a significant effect on the child’s life”. This standard requires more than just any appropriate ground for modification; it necessitates a material change in the conditions surrounding the child’s custody that significantly affects the child’s well-being.

Parenting Time Modifications

The standard for modifying parenting time is less stringent than for custody changes. According to Shade v. Wright, 291 Mich App 17 (2010), the Court of Appeals established that normal life changes, such as a child starting to participate in an school sport, can constitute proper cause or a change in circumstances for parenting time modifications. The rationale for this lesser standard is that the primary concern in parenting time is to foster a strong relationship between the child and the parents. This is different than the concern in a custody arrangement, where the stability of the child’s environment is the focus in determining if there can be a change in custody. If the judge believes that the proposed change in the parenting time schedule will affect the child’s established custodial environment, the stricter Vodvarka standard applies and the proposed change may be more difficult to achieve.

Modifications to Conditions on Parenting Time

In some cases the couple’s JOD includes specific conditions on a parent’s parenting time. These conditions may include supervised parenting time, or conditions on where or how the exchange takes place, or even who may transport the child. If a parent wishes to change the conditions of their parenting time, a third standard was introduced by the Court of Appeals in Kaeb v. Kaeb, 309 Mich App 556, (2015), which is more flexible than the standards in Vodvarka or Shade. This standard allows for modifications when ordinary changes in the parties’ behavior or circumstances justify revisiting the propriety of a condition. A party requesting a revocation of a condition on parenting time must establish proper cause or change in circumstances to the extent that the condition is no longer in the child’s best interests.

Procedural Considerations

Threshold Hearings

In order to consider a change in Custody or Parenting Time, a threshold must be met. That is, there must be significant information and circumstances to justify holding a hearing to decide whether the court should grant the change. Some Michigan counties hold a separate Threshold hearing before sending the case on to the judge, while many counties do not. In Mid-Michigan, for example, there is typically an oral indicator that the threshold has been met. A motion to dismiss can be filed by a parent opposing the change if the threshold is not met, although this is sometimes unsuccessful due to time constraints in the judge’s office.

Established Custodial Environment

The established custodial environment (ECE) is an important consideration in whether the court should grant a change in custody. However, often the focus in a hearing will emphasize the “best interest factors.” The best interest factors consist of 12 questions that each asks a question working to determine which parent better meets the “best interests” of the child. However, ECE evidence becomes crucial if a parenting time modification effectively results in a change of custody. The clear and convincing standard is often assumed in custody cases unless neither parent has an ECE with the child.

Best Interests of the Child

In presenting evidence on the best interests of the child, it is generally enough to  have the testimony of the parents, unless another witness has critical information to add and there is no other way to obtain the information. In addition, attorneys should carefully evaluate the potential contributions of witnesses who are unwilling or reluctant to testify. In post judgment litigation, significant time is spent reviewing the client’s information to determine what may be beneficial or harmful, and as a result, the parent who wishes to change the court’s order regarding custody or parenting time must be prepared to have all the relevant information ready and understand that the process will take some time.

Conclusion

Understanding the standards and procedures for post judgment custody litigation is essential for effectively navigating these cases. This memorandum outlines the critical aspects of post judgment custody litigation, emphasizing the standards for modifying custody or parenting time, procedural considerations, and the established custodial environment. The aim is to help parents narrow down these elements and the relevant case law, and begin to prepare for the complexities of post judgment custody disputes.

If you have any questions or need further clarification, or if you are looking to find an attorney to help you, please do not hesitate to contact our office.