When child custody orders are entered while children are still young, it creates a strong chance that parents will need to change those orders over time. To do that, Michigan law requires the parties to show “proper cause” or “change of circumstances” before a custody order can be changed. But what does that mean to you and your family?
Fear of Child Abuse Triggers Motions to Modify Custody
Christina Marie Pennington and Corey Alan Pennington were divorced in February 2016, while their daughter was very young — less than 1 year old and still breast-feeding. Because of this, their initial custody order gave Corey limited, supervised parenting time until he could complete a parenting class and the child could get a little older and better able to be separated from her mother. And that is what happened. In January 2018, both parents agreed to adjust the parenting time schedule, giving Corey unsupervised parenting time with the child every other weekend.
But then, Christina got worried. When her child told her “daddy hurt me” and she noticed redness and irritation near the child’s vagina, she immediately took the child to her pediatrician for an examination. The pediatrician contacted Child Protective Services (CPS), as he was required to do, and CPS investigated whether there had been sexual child abuse while the child was in the father’s care. They did not find evidence to support those concerns.
Then Corey went to court. He filed two separate motions to modify custody claiming that Christina’s reaction to the situation showed she was mentally ill. On the first motion, in March 2018, the court found there was proper cause to modify custody, ordered Christina to undergo psychological evaluation, and expanded Corey’s parenting time to every weekend plus five weeks in the summers. In August, based on the same proper cause, the court awarded Corey primary physical custody and limited Christina’s parenting time to every other weekend.
What Does “Proper Cause” or “Change of Circumstances” Mean?
Christina appealed. She said that the testimony the trial court had heard — mostly by the parties and the CPS worker assigned to the case — wasn’t enough to establish proper cause or change of circumstances. The court of appeals agreed.
Proper Cause Means Trouble for Children
The definition of proper cause in Pennington v Pennington is one of the clearest I have seen as a family lawyer:
“‘Proper cause’ sufficient to revisit a custody order requires the party seeking the custody change to prove by a preponderance of the evidence the existence of an appropriate ground; the ground must be relevant to at least one of the twelve statutory best-interest factors, and must be of such magnitude that it has a significant effect on the well-being of the child. ”Pennington v Pennington, ___ Mich App ___, ___ NW2d ___ (2019)
In other words, the person filing the motion to modify custody will have to show that something has happened that is related to one of the 12 best interest factors that will seriously affect the child if it is allowed to continue. These are usually the big-ticket items such as:
- Child abuse or neglect by one parent or in one parent’s home
- A parent’s arrest or conviction resulting in jail time
- A parent’s mental health episode or suicide attempt resulting in intensive treatment
- A parent’s substance abuse overdose
- A child’s expulsion from school based on behavioral problems
- A child’s violent behavior toward siblings, step-siblings, pets, or others in one parent’s home
In Pennington, had the CPS investigation found evidence of child abuse when Christina brought the child to her pediatrician, that may have been proper cause to modify custody all on its own, but not in the direction Corey was hoping.
Change of Circumstances Only Count Since the Last Order
More often, when parents need to modify an existing child custody order, they rely on “change of circumstances”. This is what it sounds like: evidence that something has changed in the life of the child or the parents so that the existing custody order doesn’t make sense or is no longer in the child’s best interests. Michigan courts have said that this needs to be something more than the everyday life changes that are part of growing up. They need to significantly affect the child’s well-being or have an effect on the child. Changes in circumstances required to modify custody don’t have to be as big as proper cause. They often include:
- Decline in a parent’s physical or mental health to the extent it affects their ability to parent
- Problems at school or with education options provided in one parent’s district
- Behavior problems when new siblings or step-parents move in
- Exposure of a child to a dangerous adult, sometimes including a live-in partner
- A parent’s drug use in front of the child
- A parent’s new job requiring relocation out of state
- Ongoing problems between parents agreeing over the child’s medical treatment, education, or religious upbringing
However, what most parents don’t realize is that changes of circumstances can only be measured since the date of the last order. I see this all the time. Parents will come to me to modify their custody order because “she’s always had anger issues” or “he’s been drinking for years.” The courts are legally required to assume that — unless it was appealed — the last court order was entered based on the child’s best interests. Except in very limited exceptions related to establishing a pattern of behavior, the court will only entertain evidence that has happened since the last time the family was in court.
In Pennington, the trial court said, based on the testimony of the CPS investigator, Christina’s mental health concerns created proper cause and a change in circumstances serious enough to essentially flip the existing parenting time schedule. But the Court of Appeals disagreed. It said without medical evidence showing that Christina’s anxiety and depression were certain to affect the child, the trial court didn’t have enough proof to modify the child custody order.
Deciding when, and how, to ask the court to modify a child custody order can be difficult and emotional. If you file too soon you may not have the evidence you need to demonstrate the reasons you need the order changed. And if you file too often you run the risk of upsetting your judge and being denied the change you need. Talk to an experienced family lawyer now to develop a strategy and prepare to modify your custody order when the time is right.