I am a divorce lawyer in the Rochester area of Oakland County, Michigan. My office is easily accessible to Auburn Hills, Troy, Clarkston, Oxford, Lake Orion, Bloomfield and Birmingham.
To modify custody the parent seeking the modification must show that there is a change in circumstances or good cause to revisit custody before the court will even consider a potential modification. The same is true for parenting time however the courts in Michigan have held that there is a less stringent requirement regarding the change of circumstances or good cause in order to modify parenting time. The court recently addressed the issue of removing a restriction on parenting time, such as supervision of parenting time and the applicable burden of proof to remove the same.
Is there are requirement to show proper cause or a change in circumstances to remove a restriction on parenting time?
The matter of Kaeb v. Kaeb, COA No. 319574, March 12, 2015 (For Publication) addressed this issue. The Michigan Court of Appeals decided that one must prove proper cause or change in circumstances in order to allow a divorce court judge to consider removing restrictions on parenting time but it is a less stringent standard than is required to change custody or modify parenting time.
In Kaeb, the court originally ordered joint custody but the children resided primarily with the mother during the school year. About one year after the divorce, the mother filed a motion to modify custody based upon allegations that the father had serious alcohol and gambling issues which impaired his ability to provide proper care for the children. The parties came to an agreement and entered a stipulated order granting the mother sole custody and provided the father with limited supervised parenting time. It further required, as a condition for parenting time, that the father would continue alcohol treatment and therapy.
The father, after completing various programs, filed a motion for unsupervised parenting time. The court entered an order which allowed unsupervised parenting time on specific days but provided that he must continue with AA and counseling. Approximately one year later, the court expanded his parenting time but included a condition that he must maintain sobriety, continue counseling and attend AA regularly.
The father then filed a motion to remove the conditions regarding the counseling and attending AA meetings. He provided a report from his counselor which indicated that there was no clinical need to continue the alcohol counseling or attend AA. The court found that this report did not constitute evidence of a change in circumstances sufficient to justify removing the conditions from the order.
The father appealed on the basis that the court improperly determined that the change of circumstances threshold applied to his case. The Michigan Court of Appeals analyzed case law which held that in order to modify custody the change of circumstances cannot refer to a normal life change but rather the conditions surrounding the custody of the child have changed in a manner that could have a significant impact on the child's well-being. However, this definition does not apply to a modification of parenting time. To modify parenting time, normal life-changes may be sufficient even if the same changes would not justify revisiting custody.
Based upon the above analysis, the court decided that the father did have to demonstrate proper cause or a change in circumstances but a lesser, more flexible understanding of proper cause or change of circumstances should apply to a request to modify or amend a condition on parenting time. It stated that a condition that was in the child's best interests when the child was in elementary school might not be in the child's best interests after he or she reaches high school. Even ordinary changes in the parties' behavior, status or living conditions might justify that a previous condition is no longer required.
When it comes to changing an existing condition on parenting time, the parent seeking the change must only demonstrate proper cause or change in circumstances that would justify a determination that the condition in its current form no longer serves the child's best interests. It appears one must only demonstrate an appropriate ground for taking legal action which seems relatively low compared the requirements to modify custody or even parenting time.