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Changing a Custody Order

Contents

    A child custody order is not permanent. The court can change it. Read this article to learn more about how a custody order can be changed.

    Filing a Motion to Change Custody

    If you want to change your custody order, file a motion to change custody in your family law case. If you want to change an ex parte order (a temporary order entered without a hearing), use the form called Objection to Ex Parte Order and Motion to Modify or Rescind. You must file this form within 14 days after you were served with the ex parte order. To change any other custody order, use the Motion Regarding Custody. If you file the motion, you are the moving party. The other parent is the Respondent.

    The court will charge a fee to file your motion. If you get public assistance or cannot afford to pay the fee, you can ask the court to waive your fees. You can use our Automated Online Waiver/Suspension of Fees & Costs Form to do this.

    When you file your motion, you will schedule a court hearing. The court clerk will tell you the hearing date and time. Put that information in the notice of hearing at the bottom of your motion. Then you must serve the motion and notice of hearing on the Respondent.

    Responding to a Motion to Change Custody

    If you are the Respondent, you can respond by: (1) filing a written response and serving the moving party with it or (2) going to the hearing and telling the court what you think about the motion.

    To give the judge a chance to read and understand your response before the hearing, it is a good idea to both file a written response and go to the hearing.

    If you do not file a written response and there is proof in the court file that you were served, the court may hold the hearing without you if you are not on time. This means the judge can grant the custody change without your input. You may want to respond to the motion even if you agree with the change in custody.

    Active Servicemembers

    If a parent is deployed on military duty when the motion to change custody is filed, the judge may stay (stop) the proceeding at that parent’s request. The request must be written and signed. If you claim to be deployed when you are not, you may be charged with perjury for lying.

    Except in certain cases, a judge may not issue or modify an order that changes the placement of a child from what it was at the date of deployment.

    The deployed parent must notify the court within 30 days of when the deployment ends, and the case will resume. When weighing the best interests of a child, a judge cannot consider a parent’s absence due to deployment.

    How the Court Decides a Motion to Change Custody

    The court will take several steps to decide whether to change an existing custody order.

    Step 1: The court decides if there has been a change in circumstances or proper cause to consider a custody change

    The court will not reconsider an existing custody order (except a short term or temporary order) unless it finds there has been a change in circumstances or proper cause to reconsider custody.

    A change in circumstances must be significant for the court to consider changing custody. You must show the court that the change is more than just normal changes (good or bad) in the life of the child. You must also show that the change has affected or will almost certainly affect your child.

    If you can’t prove there has been a change in circumstances, you need to show the court there is proper cause to reconsider custody. Proper cause must be related to at least one of the 12 “best interests of the child” factors in the Michigan Child Custody Act. To learn more, read the article The “Best Interests of the Child" Factors.

    If you cannot prove proper cause or a change in circumstances since the entry of the last order, the court will not change custody, and the current custody order will stay in place.

    If you are trying to change an ex parte or short term order, the court will skip Step 1 and start at Step 2.

    Step 2: The court decides if there is an established custodial environment to determine what standard of proof to apply

    The court must decide whether the child is in an established custodial environment, or ECE. There is a different standard of proof for changing custody if there is an ECE. The standard of proof to change an ECE is clear and convincing evidence. The standard of proof in all other custody cases is a preponderance of the evidence.

    To determine if there is an ECE, the court looks at:

    • Whether there is already a custody order (but this alone doesn’t create an ECE) and

    • Whether the child has been with the present custodian or custodians for a significant period of time, during which the child has received:

      • Parental care

      • Comfort

      • Discipline

      • Love

      • Guidance

      • Security

      • Stability

      • The necessities of life and

      • Permanence

    Step 3: The court uses the appropriate standard of proof to decide if changing custody is in your child’s best interests

    The court’s job is to decide whether it’s in your child’s best interests to change custody. The judge will review the evidence presented by both parents and apply the appropriate standard of proof to the Michigan Child Custody Act’s best interest factors. The court must consider each factor and make specific findings on the record. To learn more, read the article The “Best Interests of the Child” Factors.

    It is harder to convince a judge to change custody if there is an ECE because the clear and convincing standard is a higher level of proof than the preponderance of the evidence standard.

    Convincing the court to change custody can be hard to do, so you may want to have a lawyer’s help. Use the "Find a Lawyer" section on the right side of this page to contact a lawyer in your county. If you are low-income, you may qualify for free legal help.

    Motion to Change Parenting Time

    As with a change in custody, the parent asking for a parenting time change must show proper cause or a change in circumstances. The court will only reconsider parenting time after you prove one of those things.

    There is a lower bar to show proper cause or change in circumstances for parenting time, unless the proposed change in parenting time would change the ECE. In other words, reasons that are not enough to change custody may be enough to change parenting time.

    Existing Orders

    Orders regarding custody and parenting time stay in effect until new orders are entered. If you want to change custody or parenting time, you must file a motion and serve the other parent. Then a judge must decide whether to change the existing custody or parenting time order. After you file a motion, the old order is still in effect until the judge signs a new order.