LEGAL STANDARDS FOR CHANGE IN CUSTODY OR PARENTING TIME PART I – WHAT IS A CHANGE IN CIRCUMSTANCE OR PROPER CAUSE?
Whenever a parent files for divorce, a change in custody, or even a change in parenting time, the court must analyze numerous factors prior to making a decision about what it best for your child.
The court intends for custody orders to be final. Therefore, the court will only consider a request to change custody or parenting time when there has been a significant change in circumstances since the Court’s last order, or if there is proper cause to re-evaluate the custodial environment of the child. Vodvarka v Grasmeyer, 259 Mich App 499, 75 NW2d 847 (2003). The term “proper cause” means that there are facts and circumstances that exist that have, or could have, a significant effect on the child’s life. Id. at 511.
What is the difference between a change in circumstance and proper cause?
Sometimes the very same facts that give rise to a change in circumstances also establish that there is proper cause to change custody or parenting time. However, sometimes proper cause exists apart from whether or not there is a change in circumstances. That sounds like something that only lawyers could come up with, right? That’s because these are legal “terms of art”. In my experience, that means that what is or is not a “change in circumstances” or “proper cause” is interpreted differently by everyone who looks at it.
Generally, normal life events such as a change in job, re-marriage, or moving within the permitted 100-mile radius, are not considered to be a change in circumstances sufficient to change custody. However, a move that affects where your child will attend school may trigger a re-evaluation of your child’s custodial environment because education is a joint legal custody matter. Neither parent can change where a child attends school without the agreement of the other parent or permission from the court.
Proper cause is a slightly different standard. Proper cause can sometimes be a single incident, such as a parent’s arrest. Proper cause to change custody might also be found if a parent begins to co-habit with someone who is unsafe to be around the child due to criminality or drug and alcohol abuse. Abuse or neglect of the child by a parent, or a household member, might also constitute proper cause to change custody. However, a mere allegation, or the mere involvement of child protective services for an investigation, does not necessarily establish proper cause. This is a particularly difficult area because what your child tells you is not, generally, admissible as evidence against the other parent in court.*
If it is determined, by a preponderance of evidence, that there is either a change in circumstances or proper cause to re-examine custody, the court must then decide whether there is an established custodial environment for the child.
There are no easy answers to the difficult question of where a child should live, or whether a child custody order should be modified. The law changes constantly, and the courts are not always consistent in their rulings. Having an attorney who is skilled in litigating child custody matters can make all the difference in your case.
If you have questions, please feel free to submit them to us through our website, or call us for a free consultation at (269) 321-5059.
*If you are concerned about injuries or unexplainable marks on your child, the very best thing that you can do to protect your child is to take him or her to their primary care physician or the emergency department. The courts hear a lot of allegations in a year. Most of them are unsubstantiated and cannot be proven. By documenting any signs of abuse through your child’s physician, you are in a better position to protect your child.