Modifying Parenting Time vs. Modifying
Custody
When
meeting with clients, a common confusion arises regarding the difference
between modifying parenting time and modifying custody. The difference can be
very confusing and seem insignificant. However, it is important to know the
subtleties between the two; the difference can have a great impact on your
relationship with your child. The following is a rather detailed description
the differences between the modifications. If you would like to discuss your
current custody and/or parenting time arrangement, contact Tripp and Tagg,
Attorneys at Law at 269-945-2242 or visit https://trippandtagg.com/
to email the attorneys.
ARE YOU ASKING TO MODIFY CUSTODY OR PARENTING TIME?
As a
general rule, attempting to change custody is more difficult than attempting to
modify parenting time. But what is the difference between a change of
custody and a change in parenting time? To answer the above question, one must
first understand the concept of the “established custodial environment.”
MCL
722.27(1)(C) states:
The
custodial environment of a child is established if over an appreciable time the
child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort. The age of the
child, the physical environment, and the inclination of the custodian and the
child as to permanency of the relationship shall also be considered.”
A
change of custody is typically seen as a change in the custodial arrangement
that alters the established custodial environment of the child. For example, if
a change in the custodial arrangement is so significant that it would alter who
the child looks to for guidance, discipline, the necessities of life, and
parental comfort, then that change probably will be classified as a change in custody. A change of parenting time can be
seen as a change in the custody arrangement that does not have the effect of
altering the established custodial environment.
A
simplified (quite possibly too simplified) way of looking at the
situation is to assume that if you are looking for a lot more time with your
child then you might be asking for a change in custody. But if you are
asking for a little bit more time with your child, then you might be asking for
a change in parenting time.
Again,
the significance of this matter is that trying to modify parenting time is much
easier than trying modifying custody. Below the differing legal standards
when dealing with modifying custody versus parenting time are explained.
WHAT MUST YOU SHOW TO GET THE COURT TO REVISIT THE CUSTODIAL ARRANGEMENT?
To
deter parents from filing frivolous motions to modify custody every other week,
before the court will even entertain a parent’s request to modify custody or
parenting time, the parent must meet the initial threshold of showing the court
that “proper cause or change of circumstances” exists to warrant
re-review of the custodial arrangement. If a party cannot satisfy this burden,
no review to modify may be conducted. Prior agreements or the judgment of
divorce may also impact and establish the threshold.
INITIAL THRESHOLD TO MODIFY CUSTODY
When
it comes to a potential change in custody, to establish a “change of
circumstances,” the parent requesting the change must prove that, since the
entry of the last custody order, the conditions surrounding custody of the
child, “which have or could have a significant effect on the
child’s well-being,” have materially changed.
“Proper
cause” alone can also serve as a basis for modification. Proper cause
means one or more appropriate grounds that have or could have a significant
effect on the child’s life to the extent that a reevaluation of the child’s
custodial situation should be undertaken and the grounds should be relevant to
at least one of the twelve statutory best interest factors in MCL 722.23.
INITIAL THRESHOLD TO MODIFY PARENTING TIME
Parenting
time changes have a lower threshold than custody changes. For parenting time,
a more expansive definition of Proper Cause or Change of Circumstances is
necessary, because the objectives are different. The same normal life changes
inadequate to warrant a custody change are exactly the types of considerations
to consider when addressing a parenting time change.
While
the primary concern with custody is the stability of the child’s environment
and avoidance of unwarranted changes, the focus of parenting time is to foster
a strong relationship between the child and its parents. When analyzing whether
Proper Cause or Change of Circumstances to modify parenting time exists, the
child’s age may be taken into consideration. However, the parent trying
to modify parenting time must show that there are “practical implications”
to the child growing older that justify modification of the parenting time
arrangement. A parent should be ready to show how the child’s needs are not
sufficiently being met by the current parenting time arrangement.
WHAT STANDARD IS THE COURT USING TO ANALYZE THE PROPOSED CHANGE?
If and
only if a parent is able to show a finding of proper cause or change of
circumstances, the court will revisit whether modifying custody or parenting
time is appropriate. The burden of proof to modify rests on the parent
seeking to modify. If a parent is trying to modify custody (i.e., alter
the established custodial environment), that parent must show by “clear and
convincing evidence” that modification is in the best interests of the child.
Clear and convincing evidence is a high standard to meet. If a parent is
merely trying to modify parenting time, that parent must show by a
“preponderance of the evidence” that modification is in the best interests of
the child. The preponderance of the evidence standard is a lower standard to
meet.
ANALYZING CUSTODY
When analyzing a modification
in custody, the Court is required to review the 12 best interest factors
of MCL
722.23, listed as follows:
(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. (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.
ANALYZING PARENTING TIME
When
analyzing a modification in parenting time, the Court is required to review the
12 best interest factors of MCL
722.23 AND the court also has the option of reviewing the 9
parenting time factors of MCL
722.27a, listed as follows:
(a)
The existence of any special circumstances or needs of the child. (b) Whether
the child is a nursing child less than 6 months of age, or less than 1 year of
age if the child receives substantial nutrition through nursing. (c) The
reasonable likelihood of abuse or neglect of the child during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise
of parenting time. (e) The inconvenience to, and burdensome impact or effect
on, the child of traveling for purposes of parenting time. (f) Whether a parent
can reasonably be expected to exercise parenting time in accordance with the
court order. (g) Whether a parent has frequently failed to exercise reasonable
parenting time. (h) 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. A custodial parent’s temporary residence with the
child in a domestic violence shelter shall not be construed as evidence of the
custodial parent’s intent to retain or conceal the child from the other parent.
(i) Any other relevant factors.
If the
matter is referred to a Friend of the Court custody investigator, the
investigator is required to review the parenting time factors.
CONCLUSION
In summary,
when a parent desires to modify the custodial arrangement (i.e., increase
his/her time with the child and/or decrease the other parent’s time with the
child), the parent should understand the differences between changing custody
versus changing parenting time. As a general rule, changing custody is
much more difficult to do than modifying parenting time.
If you would like to learn more about this subject, please contact
Tripp and Tagg, Attorneys at Law, call 269-948-2900 or 269-945-2242 or visit https://trippandtagg.com/ .
*This blog is intended for informational purposes only and does
not constitute legal advice. Please consult an attorney before making important
decisions regarding your individual situation.
