Buyer’s Regret After Agreeing to Legal and Physical Custody

Getting divorced is hard. Fighting for custody is hard. In the end, some parents experience “battle fatigue” and are talked into an outcome that they later regret. Many parents assume that after the dust settles, they can go into court and begin the battle anew. That is not true.

After a judgment of order for legal custody and/or parenting time is entered, a parent must show either (i) proper cause, or (ii) a change in circumstance before the court will change legal custody or parenting time. The Michigan Court of Appeals addressed the issue of “proper cause” in Vodvarka v Grasmyer, 259 Mich App 499 (2003), where it held that “to establish ‘proper cause’ necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child's well-being. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors.” Id. at 512. The court then held in Shade v Wright, 291 Mich App 17 (2010), that if parenting time only is at issue, and if the change in parenting time will not change a child’s “established custodial environment,” the court can find proper cause or a change in circumstance more easily. In Shade, the court stated:

Therefore, we hold that, in a case where a modification of parenting time does not alter the established custodial environment, the fact that a child has begun high school and seeks to become more involved in social and extracurricular activities (normal life changes that do not constitute a change of circumstances under Vodvarka ) constitutes a change of circumstances sufficient to modify parenting time. In this regard, we note the fact that the parties in this case live in different states, requiring significant travelling time for the minor child to accommodate defendant's exercise of parenting time, is significant.4 With our holding today, we do not seek to precisely define the proper cause or change of circumstances necessary to change parenting time. Our holding is limited to our conclusion that the normal life changes that occurred with the minor child in this case are sufficient to modify parenting time.

If a parent meets the “threshold” for asking to change custody or parenting time, then the court must ask if the requested change would change the child’s established custodial environment (“ECE”). The ECE is defined in MCLA 722.27:

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.

Sometimes the actual ECE is consistent with what is described in the last court order of judgment. For example, the judgment may have awarded the parties shared parenting time, and the parties are, in fact, sharing parenting time. There are times, however, where parents have drifted away from what the court ordered. For example, the court order may speak of shared parenting when, in fact, a father is seeing the children only sporadically.

If there is a conflict between the “reality” of the situation and the court documents, and if that has been the case for an “appreciable period of time,” then the “actual” facts will trump the court documents. In these cases, the court will have to determine which parent the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort. That is the parent with the ECE. If the child looks to both parents, then there is a shared ECE (even if that is not what was awarded by the court).

If a request to modify legal custody or parenting time is likely to modify a child’s ECE, then MCLA 722.27 requires a court to find that the modification will benefit the child by clear and convincing evidence based on the best interest factors set forth in MCLA 722.23.

In short, a parent cannot walk out one door of the courthouse and then back in another door to request a change in custody. Often, a party will “regret” that he/she settled a case. Sometimes that parent recalls being pressured to “settle” by the judge and/or his attorney and/or a mediator. None of these feelings will matter in a proceeding to modify a judgment or order with regard to custody. What matters is whether there is proper cause for a change or whether there has been a change in circumstance that warrants a change. The next issue is whether the requested modification relates to parenting time only—in which case the standard for proper cause or a change in circumstance is lower, and court must just find by a preponderance of the evidence that the change will serve the child’s best interest.

If there is proper cause and/or a change in circumstance, and if the change in legal custody or parenting time will change the child’s ECE, then the court must just find by clear and convincing evidence that the change will serve the child’s best interest. If proof could be quantified, then preponderance would mean something like 51%, and clear and convincing evidence would mean something like 75%.

It is important in every proceeding concerning a child that the parties and the court consider the child’s best interest—not just the benefit of “settling” all issues or the “cost” of proceeding. It is very difficult to change the outcome of a custody dispute because the courts do not want to de-stabilize children’s situations.