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Motions to Change Custody: Michigan's Threshold "Proper Cause Standard"

Power of Circuit Court to Modify Custody

722.27. Sec. 7. (1)(c)(c) Subject to subsection (3), modify or amend its previous judgments or orders for proper cause 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.

By:           Marc A. Rapaport
                September 8, 2015

In Michigan, as in most other states, a judge usually does not have the authority to decide the merits of a motion to change custody unless the court first decides that the moving party (i.e., the party seeking a change in custody) has established that a change in circumstances (also referred to as "proper cause") has occurred. MCL 722.27(1)(c); Vodvarka v. Grasmeyer, 259 Mich App. 499, (2003). There is ample justification for imposing this preliminary burden on movants. If not for this requirement, any disgruntled parent could force the other parent, on a whim, into a whole new round of repetitive, costly and potentially futile litigation. The avoidance of repetitive or patently unmeritorious court proceedings is particularly important in custody matters, which can involve intrusions on the lives of the subject children with the potential appointment of forensic experts.

Proper cause exists for a custody modification proceeding if the moving party has shown that since the entry of the last custody order, there has been a change in conditions that have or could have a significant effect on the child's well being. Mino changes in the child's environment (one's that are not likely to significantly affect the child's well being) will not suffice

The threshold requirement of establishing a change in circumstances is imposed on the moving party in any case where there is a preexisting custody order and there already exists an "established custodial environment", which means an environment where the child "naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." In some cases, the issue of whether or not there presently exists an "established custodial environment" is a contested issue that involves a separate trial. If the court finds that there is no established custodial environment, the court is free to determine custody based on the child's best interests.

The question of whether or not there has occurred a change in circumstances substantial enough to warrant reconsideration of custody or visitation is a fact-intensive analysis, which focuses (like most other custody issues) on the best interests of the subject child. In Vidvarka, the court held that "the relevance of the facts showing changes in circumstance is "gauged by the statutory best interest factors.". In other words, a change is substantial enough to warrant a reconsideration of custody if the change affects the best interests of the child. For example, in the recently-issued decision in the case of Baughman v. Hartman, 2015 WL 4635112 (Michigan Crt of Appeals, August 4, 2015), the court held that the parents' "poor communication and lack of cooperation" relating to summer parenting time, sleepovers, and medical care met the threshold proper cause for the court to adjudicate the merits of the modification request.

Marc A. Rapaport is a matrimonial attorney based in New York City. He is the founder and managing member of Rapaport Law Firm, a full-service family law firm that provides legal help to parents facing complex custody and visitation issues throughout the United States.


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