While attending the Rochester Hills Oakland Michigan leadership seminar, one of the attendees asked me what is required to change custody.  In order to change custody in Michigan one must first show proper cause or a change of circumstances, then if the court agrees that there is proper cause or a change of circumstances, the court must evaluate the statutory best interest factors to determine if it should change custody.

The Issue       

What does proper cause or change of circumstances mean with respect to seeking a change of custody?

The Answer

Before a divorce court will even entertain any evidence as to whether a change of custody is in the best interests of a child, the party seeking the change must first establish proper cause or a change of circumstances.  The party seeking the change needs to show one or the other, not both.

Proper cause for the purpose of changing a custody order, requires one to prove by a preponderance of the evidence (more likely than not or a 51% certainty) the existence of an appropriate reason for the court to change custody.  The appropriate reason or reasons should be relevant to at least one of the twelve best interest factors and must be serious enough to have a significant effect on the child’s well-being.  When a party has proven this, then the trial court can proceed to evaluate the best interest factors and decide whether a change is required.

To establish a change of circumstances, one must prove that, since the date of the last custody order, the conditions surrounding the child have which have or could have a significant effect on the child’s well-being have materially changed.  Issues that existed before the judgment of divorce are not relevant to this consideration. Not just any change will suffice, normal life changes that occur during the life of a child are not enough. There must also be some evidence that the material changes have had or will almost certainly have an effect on the child.  This determination is made on the basis of the facts of each case and should be relevant to the statutory best interest factors.

In the case of Naylor v Naylor, decided by the Michigan Court of Appeals on September 27, 2011, Mr. Naylor attempted to seek a change of custody based upon allegations of domestic violence between Mrs. Naylor and her boyfriend Mr. Rogers, he also claimed that she had denied his parenting time by changing the parenting time schedule and that she was neglecting the child’s education by taking him out of school and homeschooling him.  The court dismissed his case before evaluating the best interest factors because he was not able to provide proof of proper cause or a change of circumstances as defined above.

The divorce trial court originally issued a no-contact order between Mr. Rogers and the child.  Mrs. Naylor violated this order, however the court found that the while the child may have witnessed arguing between Mr. Rogers and Mrs. Naylor, Mr. Rogers had never struck Mrs. Naylor.  Further a psychologist testified that Mr. Rogers had not negatively impacted the child and did not pose a threat to his well-being going forward.  The court found this testimony credible.

It probably did not help Mr. Naylor’s credibility or his case that he admitted his claim regarding the denial of parenting time was based upon an agreement to change the parenting time at his request.  Further, he admitted that he agreed to the homeschooling arrangement before he filed his motion.

Summation

When seeking a change of custody, the first analysis must center on whether there is proper cause or a change of circumstances that has or will impact the child’s well-being that has occurred since the date of the last custody order.  If not, then the court will not even consider changing custody or re-analyzing the best interest factors.