A judgment may be the final order in a divorce or child custody action, but if you have children it isn’t necessarily the end of your time in court. Even when you and your co-parent come to a parenting time arrangement that works it the moment, things can change over time. When that happens, is it possible to change child custody after the judgment is signed?
No judgment – by consent or by a judge – can predict what children and parents will need 18 years in the future. As children grow up and parents’ lives change, even the best judgment can become a bad fit. What can you do if your custody order no longer makes sense for your family?
Change Child Custody By Agreement
Most co-parents adjust their child custody order over time, even when they don’t realize it. 6:00pm pick ups become after school as children get old enough to stay home alone. Every other weekend turns into every third weekend because of dad’s baseball club or daughter’s riding lessons. Two vacation weeks in the summer become three when grandma wants to take the kids to Canada. Mom may even ask dad to take custody because son listens to dad better when it comes to school and discipline. And that’s okay.
Courts encourage parents to make small changes to child custody orders as long as they can agree to the changes. The best co-parents are able to be flexible and adjust in the best interests of their children. But if you and your ex-spouse or partner agree the change child custody in a significant way, you may want to involve the Friend of the Court. A significant change in the number of overnights each party receives can affect child support calculations. It is also important to keep the court informed in case circumstances change further and you and your co-parent no longer agree.
This doesn’t have to be especially formal. You and your co-parent can simply write down how you want to divide the parenting time going forward, put your case number on it, each sign it, and send it to the Friend of the Court in your county. If you aren’t sure what to include, or no longer live near the the court that entered your order, you can hire a family lawyer to write up the agreement and file it with the court. If appropriate, you can then ask the Friend of the Court to review your child support order. If the new agreement (or changes in the parties’ income) would cause a significant change in the child support award amount, the court can enter a new child support order with both parties’ consent.
Asking the Court to Change Child Custody
Most co-parents can agree to small adjustments in parenting time. But for larger changes you usually need to get the court involved. Michigan law gives the court that entered your judgment “continuing jurisdiction” over your case until the youngest child reaches age 18 or graduates from high school. That means when things change, you can file a motion with that court to modify the existing child custody order to suit your new situation.
But you can’t just file a motion because you feel like you deserve more time. Before the court will hear your request to change child custody you must show that there has been proper cause or a change of circumstances since the entry of the most recent order. The court will assume that the last order was in the best interests of your child, so anything that happened before that order is off the table.
Clients regularly ask what change is enough to file a motion. Problems with co-parents usually devolve over time. For example, what starts as a simple disagreement over pick-up locations can eventually reveal problems at your ex-spouse’s home and suggest that maybe the children shouldn’t spend much time there. It would be helpful if parents could ask the court to step in before things got ugly, or dangerous. Unfortunately, family law is almost entirely reactive — only once something happens can the parents ask the court to correct the problem. Family court judges are generally not allowed to make proactive changes to avoid conflict.
How long you will have to wait depends on what you are asking the court to do. Modifying parenting time by switching from Tuesday to Wednesday nights may not take much — maybe all you need is to show your work schedule has changed and you will be able to spend more time with the children on Wednesday. But when you are asking the court to change child custody, you will have to do far more.
Why the Established Custodial Environment Causes Problems for Non-Custodial Parents
In any motion to modify custody, a parent must demonstrate that the change is in the child’s best interests (not just their own). But when a non-custodial parent is making the motion it often means they will have to prove the change is appropriate by “clear and convincing evidence” — the highest standard in civil court. This is because, in most cases, the court will find an “established custodial environment” exists with the custodial parent.
“Established custodial environment” is the legalese way to say the parent the child relies on for discipline, guidance, and care. It may be shown by a son running to mom when he skins his knee, hiding a bad test result from dad because he’s worried about getting grounded, or asking both parents to buy him the latest X-Box One game. The courts may find that an established custodial environment exists with one or both parents. It isn’t automatic when one parent is the primary custodian, but it is very common.
Whenever you ask the court to change child custody in a way that would change an established custodial environment, you will be held to the higher evidence standard. In these cases, you will have to show that your motion is more than a matter of convenience. There will need to be something relatively significant wrong with the current custodial arrangement. And you and your family law attorney will need to gather concrete evidence of the problem, rather than relying on your testimony or your child’s preference.
Child custody judgments may be “final orders” but they are never permanent. If there have been significant changes in your life, or the life of your co-parent, you can ask the court to change child custody for the better care of your child. But this isn’t something to be taken lightly. A motion to modify custody takes a detailed understanding of the law and creative advocacy to prove what changes are needed and why.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps parents establish and modify child custody orders to help their children grow up in the best possible situation. If you need to change child custody, contact Schmidt & Long to schedule a consultation.