If there is an established custodial environment, then the court will not change custody unless there is clear and convincing evidence that it is in the best interests of the child to do that.
“The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. 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.” MCL 722.27(1)(c)
There can be no established custodial environment, there can be a joint established environment, or there can be an established custodial environment with one parent or the other parent. Because this decision effects the burden of proof, it is a very important consideration.
The burden of proof in these types of cases can be a “preponderance of the evidence,” if there is no established custodial environment. That means that something is more likely than not. The burden of proof could also be “clear and convincing evidence, if there is an established custodial environment.
Clear and convincing evidence means evidence that does more than just merely persuades you that a change in custody is probably best. To be clear and convincing, the evidence must be strong enough to cause you to have clear and firm belief that a change in custody is warranted. This means if the judge is equally persuaded by both sides, that the change in custody probably will not occur.
The burden of proof in child custody cases is very complex. Establishing what that burden is and presenting enough evidence to meet the standard in accordance with the Michigan Rules of Evidence is not something that should be attempted without an attorney. In fact, even attorneys hire attorneys to represent them in these types of cases because it’s difficult to have good judgment when your emotions are intense.
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