A child custody order is not permanent. The judge can change it. Read this article to learn more.
Filing a Motion to Change Custody
Even if you both agree to change custody or parenting time, the current order is in effect until the judge signs a new order. If you want to change your custody order, first find out whether your child's other parent will agree to the change. Although you still need the judge to sign a new order, it is easier to ask for a change if both parents agree to it.
Whether the other parent agrees or not, you will need to file a motion to ask the judge to change the custody order in your family law case. You are called the moving party if you file a motion, and the other parent is the Respondent. If you want to change an ex parte order, use the form called Objection to Ex Parte Order and Motion to Rescind or Modify. You must file this form within 14 days after you were served with the ex parte order. To change any other custody order, you can use the Motion Regarding Custody on the Michigan One Court of Justice website. If the other parent agrees to the change, be sure to check the box on question number seven to tell the judge that you and the other parent agree to the changes.
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 fee. You can use the Do-It-Yourself Fee Waiver tool to do this.
When you file your motion, ask the clerk for a hearing date. Write the hearing information in the Notice of Hearing section in your motion. Then serve the motion on the other parent. You must mail the motion to the other parent at least nine days before the hearing, or give them the motion in person at least seven days before the hearing. Follow the remaining instructions included with the Motion Regarding Custody.
During the COVID-19 emergency, motions must be served electronically, either through e-filing (if available) or e-mail. To find out if your court has e-filing for your case type, look at the E-Filing Courts in Michigan page on the Michigan One Court of Justice website.
Keep the following rules in mind when serving documents by e-mail:
All documents must be in PDF format;
The e-mail subject line must include the name of the court, case name, case number, and the title of each document being sent;
If you e-mail a document at or before 11:59 p.m., it is considered served on that day. If you send the e-mail on a Saturday, Sunday, or legal holiday, it is considered served on the next business day;
Do not delete any e-mails you send to the other party, especially e-mails that served court documents. You must keep a record of sent items until a judgment or final order is entered and all appeals have been completed.
Responding to a Motion to Change Custody
Read the Papers Carefully
If you were served with a Motion Regarding Custody, read it right away. It is important to understand what the other party is asking the judge to do. It is also important to know the date, time, and place of the hearing.
Decide How You Want to Respond
If your child’s other parent files a motion to change custody, you have three choices:
- File a written response and participate in the hearing
- Only participate in the hearing
- Do nothing
You can use the Response to Motion Regarding Custody from the Michigan One Court of Justice website. To give the judge a chance to read and understand your position before the hearing, it is a good idea to file a written response in addition to going to the hearing. You may want to respond to the motion even if you agree with changing custody.
If you don’t file a response, you can still participate in the court hearing. It is important to attend the hearing so you can answer any questions the judge has. If you do not attend the hearing on time and there is proof in the court file that you were served, the judge may hold the hearing without you. This means the judge can change custody without your input.
Pay Attention to Deadlines
Court cases have strict deadlines. If you decide to file a written response to the motion, you must file it with the court clerk at least three days before the hearing. You must mail a copy to the other party at least five days before the hearing, or give it to them in person at least three days before the hearing. Make sure to follow the instructions that come with the Response to Motion Regarding Custody.
How the Judge Decides a Motion to Change Custody
Step 1: The Judge Decides If Custody Can Be Reconsidered
A judge can only reconsider an existing custody order (except a short-term or temporary order) if there has been proper cause or a change in circumstances.
Proper cause or a change in circumstances must be significant for the judge to consider changing custody. A change in circumstances must be something that happened after the last custody order was entered. To prove a change in circumstances, the moving party must show the judge that the change is more than just normal changes (good or bad) in the child’s life. The moving party must show the change has had or could have a significant effect on the child.
Proper cause must be related to at least one of the 12 best interests of the child factors. To learn more, read The “Best Interests of the Child” Factors. To amount to proper cause, something must have (or be likely to have) a significant effect on the child. Usually, events that amount to proper cause happen after entry of the last custody order.
A change in circumstances is similar to proper cause. If something that happened after the judge signed the last custody order qualifies as a change in circumstances, it is usually also proper cause. The reverse is also true.
Examples of proper cause or change in circumstances include (but are not limited to):
- A parent is absent from the home;
- A parent has begun abusing drugs or alcohol;
- A parent is routinely not providing proper care for a child;
- A parent has abused or neglected a child.
The following examples do not qualify as a proper cause or change in circumstances:
- A parent’s financial problems, where the financial issues could be addressed by increasing the amount of child support
- A child’s normal changes in needs and desires as they grow older
- A child’s desire to change custody
If the moving party cannot prove proper cause or a change in circumstances, the judge will not change custody. 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 Judge Determines What Standard of Proof to Apply
The judge must decide whether the child has an established custodial environment (ECE). There is a different standard of proof for changing custody if there is an ECE. If there is an ECE, the moving party must show by clear and convincing evidence that changing custody is in the child's best interests. If there is no ECE, the moving party must show by a preponderance of evidence that changing custody is in the child's best interests.
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 parent or parents 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
A child can have an ECE with either parent or both parents.
Step 3: The Judge Considers Whether Changing Custody Is in Your Child’s Best Interests
The judge'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 in light of the best interests of the child factors. The judge must consider each factor and make specific findings on the record. To learn more, read The “Best Interests of the Child” Factors.
The judge will consider whether the evidence meets the clear and convincing or preponderance standard (whichever applies in your case). It is harder to convince a judge to change custody if there is an ECE because the clear and convincing standard requires a higher level of proof than the preponderance standard.
Bring to your court hearing an original plus two copies of any document you wish the court to consider when making a decision in your case.
Active Service Members
If a parent files a motion to change custody while the other parent is deployed on military duty, the judge may stay (stop) the proceeding at the deployed 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.
Generally, while a parent is deployed, a judge may not change the custody order from what it was at the date of deployment. The only exception is when the judge decides there is clear and convincing evidence that it is in the child’s best interests to change custody on a temporary basis. In this case, the judge can enter a temporary order changing parenting time.
If the judge signs a temporary order, the deployed parent must inform the court of the deployment end date before or within 30 days after the end date. The judge will then reinstate the custody order that was in effect just before the deployment.
After a parent returns from deployment, if a motion for change of custody is filed, the judge cannot consider a parent’s absence due to deployment when weighing the best interests of a child. The judge also cannot consider the possibility of future deployments when deciding the best interests of the child.
If a parent is not available because they are on active duty but not deployed, the judge may not consider the parent's absence when making a best interests of the child decision. The judge can, however, consider possible future relocation for military service when making a best interests of the child decision.
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 judge will only reconsider parenting time after you prove one of those things.
It may be easier to show proper cause or change in circumstances for parenting time, unless the proposed change in parenting time would change the ECE. Evidence that is not enough to change custody may be enough to change parenting time. To learn more, read How a Judge Decides a Motion to Change Parenting Time.
Finding a Lawyer
Convincing the judge to change custody can be hard to do, so you may want to have a lawyer’s help. If you have low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.