Founder
Sometimes we enter into agreements in order to settle a situation with the hopes that things will work out in the long run. Usually, such settlements work fine with both sides satisfied with the result. However, sometimes situations change and we need to modify an agreement to reflect present circumstances. This is certainly the case with child custody agreements.
In Michigan, child custody involves physical custody, where the child lives, and legal custody, governing who has responsibility to make key decisions about the minor child. It is not uncommon to have these matters settled between the parents according to a child custody agreement. However, this is not necessarily the final decision, as child custody orders are not permanent. Judges in Michigan have the power to change them if either parent can show proper cause or a change in circumstances.
Step one: determine if you have proper cause or a change in circumstances
Before you start the process, you need to determine if you have grounds to request a modification of the child custody agreement. Reconsideration of the child custody agreements depends upon a showing of proper cause or a change in circumstances. Proper cause means that the current custody situation is having a significant effect on one of the twelve different factors used to determine the best interests of the child. These include such things as the moral fitness of the parents, the school record of the child, the mental and physical health of the parents, and any cases of domestic violence.
A change in circumstance is similar, and usually involves the home life of the physically custodial parent. Things like child abuse, substance abuse issues, and quality of the child’s life will be considered, while financial matters or the child’s wishes will often not be considered proper cause. In general, if you are only looking to modify the existing parenting time, you will be held to a lower standard than if you are seeking a change in other custodial matters.
Step two: contact the other parent
Before incurring the cost and expense of a child custody modification, it may pay to contact the other parent. If he or she is going through a difficult time, they may be amenable to modifying the existing child custody order on consent. While a judge will still have to review the request, he or she will be more likely to approve one where the parents are in agreement. Furthermore, filing a motion for modification without first contacting the other parent could harm whatever relationship you have with that person.
Step three: filing the motion
In order to get the modification request before a judge, you need to prepare and file a motion. It starts by choosing the right form. In most cases, you will file a Motion Regarding Custody. However, if your situation is governed by an ex parte order, then you will need to file an Objection to Ex Parte Order and Motion to Rescind or Modify. These can be complicated to put together, requiring a great deal of information. This is why it is advisable to use an experienced attorney to help guide you through the process.
Please note that even if the other parent agrees to the modification, you still need to file for judicial approval. There is a section in the Motion that allows you to point out that both parties consent to the modification. This will help get the judge to approve. In addition, there is a filing fee for the motion, but it will be waived if you are unable to afford to pay, such as if you are receiving public assistance.
Step four: schedule a hearing
After filing your motion papers, you will need to schedule a hearing with the court clerk. This person will review the motion calendar for the applicable judge, and set a time and date for a hearing at which you and the other parent will appear. You are both entitled to have legal representation at the hearing.
Step five: serve the motion papers on the other parent
Even if the other parent is consenting to the motion, you will still need to have him or her served. This is something that needs to be done by a process server following the applicable provisions of Michigan law. This will let the other parent know the time and date of the hearing, and give him or her time to file any response they may have agreeing or objecting to your motion.
Step six: the hearing
Before the hearing date, you should prepare all of your evidence. If there are any documents you wish the judge to consider, you will need to make two copies of each one. While you keep the original, the copies will be given to the judge and the other parent. You should also bring along any witnesses that you would like to have testify in your behalf.
At the hearing, you and the other parent will have to testify under oath. This applies to any witnesses either of you may bring as well. The judge will ask questions, review the evidence you present, and decide whether to grant the modification based on the 12 factors for the best interests of the child.
If you are considering modification of an existing child custody agreement, we can assist you with your legal needs
As you can see, getting a child custody order modified is a very difficult process. There are a great number of steps, as well as significant legal procedures that need to be followed. The Nunley Law Group can help you by providing experienced legal representation to obtain a modification of child custody.