Modifying Parenting Time vs. Modifying Custody

When I meet 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 attorney STEVEN G. STORRS at the Law Office of Steven G. Storrs, PLC at 269-945-2242 or via the online contact form to schedule a consultation

 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 attorney STEVEN G. STORRS at the Law Office of Steven G. Storrs, PLC at 269-945-2242 or via the online contact form to schedule a consultation.

 *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.