How to change a custody order. Step one is determining if there is a change in circumstances or proper cause. Child custody lawyers help evaluate the facts in your case and help you collect evidence a in the midst of high emotional circumstances involving your children. If you are filing a motion for a change in custody you should have a child custody lawyer evaluate the facts and circumstances of your case.
Overview: Our courts favor stability for children. In light of that, the court does not favor regular change in a child’s living situation. Before a court will change a custody order that determined the best interests of a child a parent must show there has been a significant change in circumstances effecting the life of the child or show a proper cause. MCL 722.27(c) Proper cause is a cause related to the child custody best interest factors. See MCL 722.23. Normal life changes will not do it. It must be significant and the child must be effected. The new section to the best interest factors which is amended effective August 1, 2016 has been linked here.
As an allegory, a change in circumstances is like a gate you must break through to be able to play the game. If you can’t get through, you are out of luck.
Procedure: First, your custody attorney will file a custody motion. A motion is a document that asks the court to do something. Many times people will say that their lawyer wrote a “letter” to the judge. This document is referred to as a “motion” and the hearings following may be called “motion hearings.” So this would be a document asking the court to enter an order changing custody of your child.
Second, you will probably go to a hearing in front a referee. There are two types of hearings. One is just a hearing for argument in front of the judge. The other type of hearing is an evidentiary hearing. This is where witnesses are called and the court listens to your case. The first hearing is usually a hearing for argument.
Third, you may be asked to give an “offer of proof.” The judge or referee may not call it that, but may say something like “what is your position?” An offer of proof is when you tell the judge what proof you plan to present to the court to meet this standard. This proof should also be contained in your written motion. If you are unprepared or don’t know what to say, your motion can be dismissed before it starts. If you don’t make it through this gate, the court will not even consider your motion. As a child custody attorney I have won many cases because the party filing a custody motion has been unable to establish this burden, this is true even when the other party was represented but more so when the other party was not represented. I have had many people come to me after they went to this hearing complaining that the judge did not listen to them and dismissed their case. That is because they didn’t know what an “offer of proof” was and further had no idea that they needed to establish a change in circumstances or proper cause. If they did know that, they didn’t know what the caselaw was or what legal standard they had to meet to find a change in circumstances. Remember, these are cases where the party filing the motion had a good motion but was not able to follow proper procedure and so their case did not make it in front of a judge.
Fourth, if you make it past that hearing, the matter will probably be set for an evidentiary hearing in front a referee. This is a hearing in front of a judge where witnesses are called. You are expected to follow the rules of evidence at this hearing as if you were an attorney. If you do not, the judge won’t listen to you. Even if you make it through the “offer of proof” you must now present evidence that there is a change in circumstances.
Fifth, if you are unhappy with the referee’s decision, you may be able to file an objection and have the case heard in front of the Circuit Court Judge. This objection must be timely filed and must follow the court rules, or it will be dismissed. The hearing in front of the judge is called a de novo hearing. You may have to attend another hearing for oral argument on whether the objection is sufficient, a pretrial conference, comply with discovery requests, and again present evidence to the judge that follows the rules of evidence. Evidence can be limited in this hearing and procedure may vary greatly depending on the county, the judge, and the Friend of the Court procedures.
- Father files a motion to change custody and alleges the children are now older and want to spend more time with him. He is now married. It’s been 5 years since the divorce. This case was dismissed and the judge awarded me my attorney fees for having to defend it because it was so clearly without merit.
- Father alleges child wants to come live with him. The father now lives in town full time and he used to work out of state part time during the school year. The child is now 14 and when the custody order was entered he was 11. The child had family come stay at the house for the summer and they stayed in the child’s bedroom for three months. The court ruled without having a hearing that these allegations were not enough to change custody and did not grant even a trial on the matter.
Usually just a child’s desire to have the order changed is not enough.
A change in circumstances or proper cause is a gatekeeper. You must make it past that gatekeeper to have a chance in the game. With careful advice we have helped parents collect enough evidence to meet this standard and then file successful motions thereafter. Every case is unique.
You can assist your attorney by keeping careful records of any changes in your child’s life that are significant.
Here are some things that I have seen help meet the standard. At times one will not do it. So the more
Changes you can establish the better. This list does not include everything, only a few examples.
1. Child is doing poorly in school, tardy to school, or misbehaving in school. This can be linked to the other parents behavior.
2. Parent is verbally or physically abusive to child and this can be verified.
3. Parent has a documented drug or alcohol problem and some evidence of it, such as a conviction or other problem, like the loss of a job.
4. Parent moves a lot creating instability for the child.
5. Parent refuses appropriate medical care for the child or refuses to give medicine to the child that is prescribed to be given to the child. Sometimes for example, ADD medicines say to give “as needed” so it may be difficult to establish that they were needed if the child is not in your care. But if it is recommended to give them daily and they are not being given daily, get documentation of that.
6. Child has been living with the non custodial parent even if in violation of the court order.
7. Maintaining the status quo. Oftentimes parents will agree to an order and ultimately end up doing what works for them instead. So I have seen a family agree to one party having physical custody but then they share the child every other week. This can result in a change in circumstances and a change in the established custodial environment.
A child custody motion is extremely complicated. Not everything is covered here. This is just an overview of one part of a custody action, the change in circumstances or proper cause factor. It is essential if you are filing for a change in custody or if you someone has filed a change in custody motion against you, that you have a lawyer. It is also recommended that you know basic information about what is happening, which is why this information is provided to you.
If you are considering representing yourself in a custody case, please see our article, “How You May Be Signing Blank Checks—A Charlevoix Lawyer Explains How Many People Sign Blanks Checks Everyday.”
We serve clients all over the State of Michigan, Including Charlevoix County (Charlevoix, East Jordan, Elmira, Boyne City,), Otsego County (including Gaylord, Johannesburg, Elmira), Kalkaska County, Emmet County (Including Mackinaw City, Alanson, Conway, Petoskey, Walloon Lake) Cheboygan County (including Cheboygan, Indian River).
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