Many Michigan residents who have endured the emotional strain of a divorce view the judge’s signature on the final order as the last step in an arduous journey. Many of these individuals often make the incorrect assumption that the order signed by the judge is absolutely final and cannot be changed for any reason.
Even an order signed by a district judge is subject to modification if circumstances change. This statement has special relevance in child custody matters. Michigan law specifically provides that an order for child custody may be modified if the party seeking the modification can demonstrate that the circumstances of the parties or the child have undergone a significant change.
The basic steps required to modify an order for child custody
If the parents agree on a proposed modification to the order establishing procedures and schedules for custody and visitation, they can present their desired change to the judge for approval. Most such parental agreements are approved by the courts without a hearing or the presentation of evidence.
If the parents do not agree, the parent seeking the change must file a formal written motion with the court stating the requested modification and presenting the evidentiary reasons why the change should be made. Both parties will be given the opportunity to preset evidence and arguments explaining to the judge why the motion for modification should be granted or denied.
How the court decides
The party seeking the modification must demonstrate the existence of a “substantial change in the circumstances” of one or both parents or the child. The moving party must prove that the change in circumstances is likely to have a significant effect on the child.
In reviewing the arguments presented by the parties, the court must ultimately determine whether the proposed modification will serve the best interests of the child. Among the factors that commonly determined to be a “substantial change in circumstances” are the following:
- The custodial parent’s extended absence from the home
- One parent has begun abusing drugs or alcohol
- The parent responsible for the child’s health care is not providing adequate or proper care
- One of the parents has abused or neglected the child
The court must also determine whether the child has what is known as an established custodial environment (ECE). If the child has an ECE, the moving party must prove the existence of changed circumstances by clear and convincing evidence. If there is no ECE, the moving party may prove the need for a change by merely a preponderance of the evidence.