The first requirement is to prove that proper cause exists, or that a change in circumstances has occurred that would make a custody modification appropriate. If one of those two criteria is met, the court will then determine whether either or both parents has an established custodial environment with the child; this determination will allow the court to decide the burden of proof that must be met to change custody. Once the burden of proof has been established, it will be applied to the Child Custody Act Best Interests of the Child factors. This analysis is outlined below.
Is there proper cause or a change in circumstances to justify a child custody change?
The burden of proof necessary to prove proper cause or a change in circumstances is "preponderance of the evidence." This is the lowest legal standard, and it means that the petitioner - the person asking for a custody change - has to merely prove that it is more likely than not that one of these two criteria can be met.
1) Proper Cause - In order to prove proper cause, the petitioner must prove - by a preponderance of the evidence - that one or more appropriate grounds exist that could have or have had a significant effect on the child's life. Although Michigan law does not establish a rule for what constitutes proper cause, the courts will look at the Child Custody Act Best Interests of the Child factors, which are outlined below. Each of these factors relates to the parents' ability to provide appropriate love, guidance, and discipline to the child.
2) Change in Circumstances - In order to prove a change in circumstances, the petitioner must prove - again by a preponderance of the evidence - that, since the entry of the current custody order, conditions surrounding the child, which could have an effect on the child, have materially changed. It's important to note that the court will only look at events that have happened since the existing custody order was entered - the court will not look at events that happened prior to that order. These events must also be more than normal life changes that every child experiences. For example, a child becoming more involved in extra curricular activities as he enters high school would be considered a normal life change, not a change in circumstances that would warrant a custody change.
If at least one of the two criteria outlined above is met, the court will then determine whether either or both parents has an established custodial environment with the child.
Does either parent, or do both parents, have an established custodial environment with the child?
A parent, or both parents, has an established custodial environment with the child if, over an appreciable amount of time, the child looks to the parent in that environment for love, guidance, and support. In making this determination, the court will consider the age of the child and the physical environment. Although the size and condition of the home may be a factor, it will not be the only factor considered.
The burden the petitioner has to meet to change custody is based on whether or not the other parent has an established custodial environment with the child. For example, if Dad files a motion to change custody, and the court determines that Mom has en established custodial environment with the child, then Dad has to prove by clear and convincing evidence that a change is in the best interests of the child. Clear and Convincing Evidence is the highest legal standard, and requires the petitioner to prove his case almost to a complete certainty. If Mom does not have an established custodial environment with the child, then Dad has to prove his case by a preponderance of the evidence, which was discussed above.
Is a child custody change in the best interests of the child?
The Child Custody Act established 12 factors the court will look at when determining if a change in custody is in the best interests of the child. Based on the Established Custodial Environment analysis above, these factors will have to be proved by either a preponderance of the evidence, or by clear and convincing evidence. The court does not have to make a conclusion as to which parent each factor favors, but the court must at least make an assessment of the applicability of each factor.
The 12 Best Interests of the Child factors are:
1) The love, affection, and emotional ties between the parties involved and the child.
2) The capacity of the parties to give the child love, affection, and guidance; to support the child's education and to raise the child in his or her religion.
3) The ability of the parties to provide food, clothing, medical care, etc.
4) The length of time the child has lived in a stable, satisfactory environment.
5) The permanence, as a family unit, of the existing or proposed custodial home.
6) The moral fitness of the parties involved.
7) The home, school, and community record of the child.
8) The mental and physical health of the parties involved.
9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
10) The willingness of each parent to encourage a relationship between the child and the other parent.
11) Domestic violence.
12) Any other relevant factor.
Conclusion
The first step in deciding if a child custody change is appropriate is to determine if proper cause exists, or if there is a change in circumstances that would support making such a change. The legal standard to evaluate this first step is preponderance of the evidence. If the court determines that there is proper cause or a change in circumstances, the second step is to determine if either or both parents has an established custodial environment with the child. The answer to that second question will determine whether the Child Custody Act Best Interests of the Child factors are evaluated based on clear and convincing evidence or preponderance of the evidence. Once that determination is made, the court will apply the appropriate standard to each of the Best Interests factors to decide whether or not to grant a child custody change.
To learn more about this topic, or to schedule an appointment, please visit my website at http://www.toburenlaw.com/
If at least one of the two criteria outlined above is met, the court will then determine whether either or both parents has an established custodial environment with the child.
Does either parent, or do both parents, have an established custodial environment with the child?
A parent, or both parents, has an established custodial environment with the child if, over an appreciable amount of time, the child looks to the parent in that environment for love, guidance, and support. In making this determination, the court will consider the age of the child and the physical environment. Although the size and condition of the home may be a factor, it will not be the only factor considered.
The burden the petitioner has to meet to change custody is based on whether or not the other parent has an established custodial environment with the child. For example, if Dad files a motion to change custody, and the court determines that Mom has en established custodial environment with the child, then Dad has to prove by clear and convincing evidence that a change is in the best interests of the child. Clear and Convincing Evidence is the highest legal standard, and requires the petitioner to prove his case almost to a complete certainty. If Mom does not have an established custodial environment with the child, then Dad has to prove his case by a preponderance of the evidence, which was discussed above.
Is a child custody change in the best interests of the child?
The Child Custody Act established 12 factors the court will look at when determining if a change in custody is in the best interests of the child. Based on the Established Custodial Environment analysis above, these factors will have to be proved by either a preponderance of the evidence, or by clear and convincing evidence. The court does not have to make a conclusion as to which parent each factor favors, but the court must at least make an assessment of the applicability of each factor.
The 12 Best Interests of the Child factors are:
1) The love, affection, and emotional ties between the parties involved and the child.
2) The capacity of the parties to give the child love, affection, and guidance; to support the child's education and to raise the child in his or her religion.
3) The ability of the parties to provide food, clothing, medical care, etc.
4) The length of time the child has lived in a stable, satisfactory environment.
5) The permanence, as a family unit, of the existing or proposed custodial home.
6) The moral fitness of the parties involved.
7) The home, school, and community record of the child.
8) The mental and physical health of the parties involved.
9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
10) The willingness of each parent to encourage a relationship between the child and the other parent.
11) Domestic violence.
12) Any other relevant factor.
Conclusion
The first step in deciding if a child custody change is appropriate is to determine if proper cause exists, or if there is a change in circumstances that would support making such a change. The legal standard to evaluate this first step is preponderance of the evidence. If the court determines that there is proper cause or a change in circumstances, the second step is to determine if either or both parents has an established custodial environment with the child. The answer to that second question will determine whether the Child Custody Act Best Interests of the Child factors are evaluated based on clear and convincing evidence or preponderance of the evidence. Once that determination is made, the court will apply the appropriate standard to each of the Best Interests factors to decide whether or not to grant a child custody change.
To learn more about this topic, or to schedule an appointment, please visit my website at http://www.toburenlaw.com/
