Changing Custody

Changing Custody

Not an Emergency Process
Changing custody is not an emergency process. There are legal procedures that must be followed and these procedures take time. If you believe there is an emergency, you should consult with an attorney or research other options.  The Friend of the Court does not handle ex-parte motions.

Changing a Custody Order
Once a custody order has been entered (signed by the judge) a party may ask to change the order by either:

  1. Consent of the Parties (agreement) -  When the parties agree to change the custody order, they can either hire an attorney to prepare a stipulated order, prepare the stipulated order themselves. If the parties change custody, a Uniform Child Support Order (UCSO)  may also be required to stop child support or change which parent pays support. 
  2. File a Motion: If the parties do not agree, the party wanting to change the custody order must file motion to modify custody.
NOTE: You must contact the other parent and discuss your request to change custody and you must ask the other parent if he or she agrees to your request before you file a motion. 

Filing a Motion
If you choose to represent yourself in a custody matter, you should know that FOC staff cannot represent either parent, give legal advice, or assist an individual in deciding what statements should be used to complete the forms. In addition, when filing your motion, you will be held to the same standards as any attorney who practices law.

Filing Fees will be charged at the time the motion is filed. The County Clerk can provide information about filing fees and charges for copying documents. If you are unable to pay the fee, you may ask the county clerk for an MC20 Form (Affidavit and Order Suspension of Fees/Costs), which allows the court to waive the fee.

Proof of Service is also required. The law requires you to serve the other parent with a copy of the motion and any attachments and file a proof of service with the Court. You are also required to provide a copy of your motion to the FOC office. 

Threshold Requirement
In order to change custody in Michigan, you must first show proper cause or a substantial change of circumstances. This is a threshold requirement that must be met before the court can even consider your motion. You are required to show one or the other, not both.

Proper Cause must be related to at least one of the 12 best interests factors. It requires you to prove by a preponderance of the evidence (more likely than not, or 51%) that an appropriate reason exists to change custody. The appropriate reason must be serious enough to have a significant effect on the child's physical, psychological, or emotional well-being.  

Substantial Change of Circumstances means that something happened, or there was a material change, after the last custody order was entered. Issues that existed before the judgment or order are not relevant to this consideration. Also, not just any change will do, normal life changes that occur during the life of a child are not enough. You must show that the material change has had, or will almost certainly have, a significant effect on the child.  

If the court agrees that there is proper cause or a substantial change of circumstances, then you must show that it is in the child's best interest to grant your request to change custody. You should be prepared to show evidence related to the following statutory best interest factors.

Best Interest Factors
The court will look at the 12 Best Interest Factors to decide what custody and parenting time order is in the best interest of the child. Not all factors apply in every case and the court is not required to give equal weight to each factor.

Factor (a). The love, affection, and other emotional ties existing between the parties and the child:
  • To whom is the child bonded? Does the child openly show signs of affection?
  • When the child has a problem or a triumph, who does the child go to?
  • How often does each parent bathe the child, put the child to bed, and read the child stories?
  • Which parent has the ability to separate the child’s needs from his/her own needs?
  • Which parent is better able to empathize with the child?
Factor (b). The capacity and disposition of the parties to give the child love, affection, and guidance and to continue the education and raising the child in his or her religion or creed, if any:
  • Which parent stays home from work when the child is sick?
  • Which parent assists with homework and extracurricular activities?
  • Which parent handles discipline of the child? Are one parent's techniques preferable?
  • How does each parent talk to the child?
  • Which parent provides the child with extended family relationships?
  • Which parent takes the child to church or other religious events (if the family is religious)?
Factor (c). The capacity and disposition of the parties to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs:
  • Which parent buys clothes, toys, food, etc. for the child?
  • Which parent attends to any special needs of the child?
  • What is the earning capacity of each parent? Which parent has certainty of future income?
  • Which parent provides health insurance for the child?
  • Which parent makes medical appointments, dental appointments, and arranges for childcare?
Factor (d). The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. 
  • Which parent provides a stable, secure, and safe home environment for the child?
  • Which parent can provide more stability for the child?
  • Has either parent moved recently and, if so, why? How has the child adjusted to the move?
Factor (e). The permanence, as a family unit, of the existing or proposed custodial home or homes:
  • In whose custody will the family unit not be split?
  • What individuals, and how many, are in each parent’s home, or family unit?
  • Will the child live with siblings or half-siblings?
Factor (f). The moral fitness of the parties:
  • Has either parent had an extra-marital affair that was known by the child?
  • Has there been physical or verbal abuse, alcohol or drug abuse, poor driving record, physical or sexual abuse of the child, criminal records, or other negative behaviors by either parent?
  • Have these behaviors had a significant influence on that parent's ability to parent?
  • How have these behaviors affected the child?
Factor (g). The mental and physical health of the parties involved:
  • Does either parent have a physical or mental health problem that significantly interferes with their ability to care for the child or safeguard the child's health and well-being?
Factor (h). The home, school, and community record of the child:
  • How does each parent encourage and influence the child's attendance at school?
  • Which parent attends school conferences and events?
  • Which parent will ensure the child's access to friends and peers is useful for the child's development?
  • Which parent is better able to plan and supervise the child’s home responsibilities that are appropriate to the child's age and circumstances?
  • Which parent helps the child with homework?
  • Which parent can more adequately assist in reducing the necessity for other agency involvement such as protective services or juvenile court? 
Factor (i). The reasonable preference of the child, if the court considers the child to be of sufficient age and maturity to express a preference:
  • The court will decide whether a child is old enough and mature enough to state a preference.
  • The court will give more weight to this factor with children who are older or more mature.
  • There is no age at which a child can decide where he or she wants to live.
  • The preference of the child will not be shared with anyone, including lawyers or parents. Information the child reports to the court will only be used in consideration of the child's preference. 
Factor (k). Domestic violence, regardless of whether the violence was directed against or witnessed by the child:
  • Have there been incidents of violence in the home by any party against any party?
  • Has either parent been threatening, emotionally abusive, verbally abusive, or physically violent?
  • Has there been a pattern of domestic violence, including physical and non-physical abuse?
Factor (l). Any other factor considered by the court to be relevant:
  • If a child has special needs, which parent is likely to address those those needs?
  • Has either parent threatened to kidnap the child?
  • Has either parent missed visits with the child or failed to return the child from visits?
  • Are there siblings or other children whose custody is relevant to this child’s custody arrangement?
  • Are there significant others or new spouses whose relationship with the child affects the child’s best interest?
  • Is there a possibility that two or more of the children may be separated?
  • How far apart do the parents live? This could be a significant factor when considering parenting time schedules.
Custody Hearing
After your motion is filed, the court will determine if a hearing should be held. If a hearing is ordered, your motion may be heard at an FOC Referee Hearing. You and the other party will receive a notice of hearing with instructions. See Referee Hearing for more information about the hearing process.

You may act as your own attorney and represent yourself at the hearing, or you may hire an attorney to represent you. If you choose to represent yourself, you will be held to the same standards as any attorney who practices law.

Friend of the Court - Clare County, Michigan