Michigan Family Law: Post-Divorce Parenting Time Modifications

I was divorced three years ago - and circumstances have now changed - can I change the amount of parenting I have with my minor children?

 
   The short answer to this question is yes, Michigan law does allow a parent to modify an existing parenting time order under certain circumstances.  Before I explain the process and the circumstances under which a parenting time order can be modified, here's a brief explanation of child custody:

CUSTODY

   As part of a final divorce settlement or judgment, two child custody determinations must be made.  The first is legal custody, which is a determination as to which parent has decision-making authority on important decisions affecting the minor children's welfare.  Decisions that fall under the legal custody umbrella include whether the child should have surgery or another medical procedure; which religion, if any, the child should be raised in; whether the child should attend private or public school.  Legal custody can be joint, meaning the parents share this decision-making authority, or it can reside solely with one parent.  Legal custody will be joint, or shared 50/50 by both parents, unless one parent is deemed unfit.

   The second child custody category is physical custody, which is a determination as to where the child resides.  Physical custody can also be joint, meaning that the children stay the same number of nights at each parent's house; or one parent can have sole physical custody, in which case a parenting time order is often entered, giving the non-custodial parent a certain number of overnights with the minor children.  If physical custody is joint, parents usually have overnights with the children on a week on - week off basis; if one parent has sole physical custody, and the other parent is awarded parenting time, how that parenting time is determined will be based on a number of factors, including:  where each parent lives; suitability of the non-custodial parent to properly care for the children; children's preference if old enough to have a say.   

PARENTING TIME

   As mentioned above, if one parent has sole physical custody, the non-custodial parent will often have parenting time, which usually includes a certain number of overnights - often on weekends, holidays, and school breaks - and may also include mid-week visits.  

   Modification of an existing parenting time order may be requested by either party, or by the Friend of the Court (FOC) if the FOC had previously been involved in the case.  The FOC is usually involved if there are concerns about one parent's ability to safely and effectively parent the children.

   If parenting time is disputed, the court will evaluate some or all of the Best Interests of the Child Factors. Although not listed here, these factors are related to the parent's ability to provide guidance, love, discipline, and support to the children.  There are also nine factors specific to parenting time that the court may consider:

1) the existence of any special circumstances or needs of the children.

2) whether the child is a nursing child less than six months old, or less than one year if the child receives substantial nutrition through nursing.

3) the reasonable likelihood of abuse or neglect of the child during parenting time.

4) the reasonable likelihood of abuse of a parent (by a child) resulting from the exercise of parenting time.

5) the inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.

6) whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.  

7) whether a parent has frequently failed to exercise reasonable parenting time.

8) the threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody.

9) any other relevant factors.

   If parenting time is disputed, the court will make a decision based on some or all of the above factors.  If parenting time is not disputed, meaning the parties agree to modify the order, the court will grant the request unless it finds good reason not to do so.

   To learn more about this topic, please visit my website at www.toburenlaw.com.