When the court system decides on the terms of custody of a child or children, child support and/or visitation, the decision is made with permanence in mind. Whenever the decision is made - whether the child is six months old, six years old or 16-years-old, it is to be followed until the child reaches adulthood (usually 18-years-old).
This does not mean, however, that changes or modifications can not be made. While it is not easy, it is also not impossible to make changes to child custody, child support or visitation rights based on certain parameters provided by law. But one must understand that changing custody and parenting time will take some time and patience and the realization that it may not work out as you hope.
The decision to make changes to visitation/support or custody of a child should not be done lightly. No matter the age of the child, these decisions ultimately impact minors and their well-being should be the primary concern of both parties.
Changes to Child Custody
When it comes to modifying a custody arrangement, the circumstances behind the request should be substantial. Michigan law only allows changes in child custody when someone has shown proper cause or change in circumstances. Proper cause can be demonstrated by showing that the child’s life will be, or has the potential to be, significantly affected by a situation involving a parent or child. There are two types of custody, that being legal and physical and both are subjected to the proper cause in order to change them.
Legal custody refers to who may make the major life decisions for the child(ren), such as where they go to school, religion, major medical and things like this. This is usually awarded jointly such that both parents get an equal say in the child’s life and that one parent may not make a unilateral decision as to the life of the child.
Physical custody, however, refers to where the child resides the most. That can be equally with both parents or more predominantly with one parent.
Then the court system (in MIchigan) will look at three factors to determine if a change to custody of the child/ren is warranted. The three factors are:
Is it an appropriate time to modify your custody order?
The level of proof the requesting party needs to provide.
Is the custody change in the “best interest” of the child.
The term “best interests of the child” has been defined by the Michigan Legislature in Section 722.23 of the Child Care Act of 1970 to mean the following:
“As used in this act, ‘best interests of the child’ means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.”
It is important to note that the burden of proof regarding a custody change falls to the person asking for the change. The circumstances must be significant - like a move more than 100 miles away or a large financial change.
Changes to Child Visitation
While custody and visitation may seem to have the same meaning, in Michigan (and other states, for that matter), they have distinct and different meanings. Custody is a broader term. Visitation refers to the time spent with the child. In Michigan it is commonly referred to as “parenting time.”
Like custody, changing the visitation or parenting time with a child is not something that is done easily or quickly. There needs to be a cause and proof of circumstances, just like in a custody change. And, like in a custody case, the burden of proof lies with the parent wanting to make the change.
Changes to visitation do not necessarily only refer to more or less time with the child. Changes to visitation can also alter conditions placed on parenting time with the child, such as drug testing, supervision or counseling. The court can modify those conditions if doing so continues to be in the best interest of the child.
Visitation or parenting time can also be altered or modified as the child ages. The child’s extracurricular activities can be considered a “change of circumstance,” allowing for pick and drop off times to be modified to accommodate the child’s sports, dance, or club schedules when they are in middle and high school.
Changes to Child Support
Your child support is a court-ordered payment given to you to help with the cost of raising your child. Usually, when a parenting time order is entered, a support order will enter as well. Based on certain facts, support orders can be modified, either up or down.
If you find yourself in a situation where you need to adjust your child support payment for any reason, it is important to talk with a lawyer to make sure you fill out all the required paperwork and have all the documents needed.
The Friend of the Court reviews child support orders every 36 months if either of the parents is on public assistance. Parents who are not on public assistance can still request the order be reviewed every 36 months. If a review is needed prior to 36 months, the parent can file a court motion to change the support order. The State of Michigan requires the following information be provided:
· “Your four most recent paycheck stubs, or a statement from your employer(s) of wages and deductions and year-to-date earnings.
· A copy of your last federal and state income tax returns, including all schedules, W-2s, and 1099s.
· A copy of your three most recent business tax returns and/or corporation returns (if you are self-employed)
· Any additional information that may be useful to the Friend of the Court in making a support recommendation.
· The Child Care Verification (form FOC39e) if you are asking for reimbursement of child-care expenses.”
Support may also may be modified if a parent loses their job, makes more money than they did before, or other financial situations.
The judge may decide to change the child support order following the hearing or refer the case to Friend of the Court for an investigation and recommendation. Always keep in mind that both the Friend of the Court and judge will decide what is best of the child in these cases. Having all documentation, being on time and using good manners can showcase your good parenting skills. Do not, however, bring your child to a child support hearing. They will not be allowed to testify or even be allowed in the courtroom.
Changes to the custody, visitation and support of your minor child/ren can be challenging, but it is not impossible. Life happens, circumstances happen and the courts are willing to look at those significant changes and modify the orders accordingly. It is important to talk to an experienced attorney to help you through the process. And above all, make sure whatever changes you are asking for are in the best interest of your child.
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Kimm Burger, Attorney
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