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How a Judge Decides a Motion to Change Parenting Time

Contents

    A parenting time schedule is not set in stone. The judge can change it at the request of one or both parents. The parent who files a motion to change parenting time could be either the plaintiff or the defendant in the existing family case. This parent is called the moving party. The other parent is called the respondent.

    The steps the judge will take to decide whether to change an existing parenting time order depend on the kind of change requested.

    Step 1: The Judge Decides If the Motion Can Be Considered

    Changing parenting time may do one or more of the following things:

    • Change your child’s established custodial environment (see below)

    • Change how often or how long parenting time occurs

    • Add, change, or remove a parenting time condition (such as supervision or drug tests)

    For each kind of change, there are different requirements to meet before a judge will consider changing parenting time.

    Changes that affect the established custodial environment

    If the child is in an established custodial environment (ECE), a big change in parenting time might change the ECE. For example, a parent could go from having one or two overnights each week to five or six overnights each week. It is harder to change parenting time if it will result in a custody change.

    To determine if there is an ECE, the judge 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 judge will consider a request to change parenting time only when there has been proper cause or a change in circumstances. In cases where changing parenting time would actually change custody, the moving party must have the same proof that is needed to change custody.

    Proper cause or a change in circumstances must be significant for the judge to consider changing custody or parenting time in this situation. 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 interest factors. It 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.

    If the moving party cannot prove proper cause or a change in circumstances, the judge will not change parenting time. The current parenting time order will stay in place.

    When changing parenting time would change the ECE, examples of a 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

    When changing parenting time would change the ECE, 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

    Changes that affect how often or how long parenting time occurs

    If the parenting time change will not affect the ECE but will change the frequency or length of parenting time, the moving party still has to show there has been a proper cause or change in circumstances. However, when there will be no change to the ECE, there are more situations that will qualify as a proper cause or change in circumstances. A judge will consider certain normal life changes in this type of case.

    The following are examples of proper cause or a change in circumstances in this kind of case:

    • A child wants to participate in more activities that will cut into some parenting time

    • A parent’s work schedule has changed

    • A child’s school routine has changed

    These examples would not be reasons to change custody (or the ECE). However, a judge may agree that they count as proper cause or a change in circumstances for the purpose of changing parenting time.

    Changes to parenting time conditions

    Another kind of change to a parenting time order is to add, change, or remove a condition. Conditions of parenting time may require a parent to attend counseling, submit to drug tests, or pay all the transportation costs.

    The moving party also has to show there has been a proper cause or change in circumstances. In this type of case, it is enough to show that the child’s best interests are not served by the current parenting time order.

    Step 2: The Judge Weighs the Child’s Best Interests

    If the case gets past the first step, the judge will decide if it’s in your child’s best interests to change parenting time to what you or the other parent requested. 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 judge may also consider the parenting time factors. To learn more, read The “Best Interests of the Child” Factors. For a list of the parenting time factors, read Custody and Parenting Time.

    If changing parenting time will affect the ECE

    The standard of proof in this type of case is clear and convincing evidence. In other words, the moving party must prove by clear and convincing evidence that it is in the child’s best interests to change parenting time. The judge must consider each best interest factor if changing parenting time will affect the ECE.

    It is harder to convince a judge to change parenting time if the change will affect the ECE because the clear and convincing standard is a higher level of proof than the preponderance standard (see below).

    If changing parenting time will not affect the ECE

    The standard of proof in this type of case is a preponderance of the evidence. The parent requesting a change in parenting time must prove by a preponderance of the evidence that it is in the child’s best interests to change parenting time.

    If a change will not affect the ECE, the judge must consider the child’s best interests, but does not have to address each factor—only the ones that relate to the issues the parents disagree on.

    Motion to Change Custody

    As with changes in parenting time, the parent asking for a custody change must show proper cause or a change in circumstances. The judge will only reconsider custody after the moving party proves one of those things. To learn more, read Changing a Custody Order.