Increasing, decreasing or otherwise altering child visitation time (technically parenting time modification) just became easier in Michigan. Until December 3, 2010, most judges and friend of the court referees believed that in order for a person to obtain more parenting time with their child or to limit the parenting time of the other party, one had to provide proof equal to that which would be required to change custody. I have long argued that this did not make sense because parenting time and custody are two very different things. The Michigan Court of Appeals appears to agree and the law is now changed, or at least more clear, in that regard.
A brief explanation of the proof needed to change custody is required. In order to change custody in Michigan, one must prove by clear and convincing evidence, which is a very high level of proof, that there has been a change of circumstances or proper cause that has occurred since the most recent order regarding custody before the court will even consider a change of custody.
Further, the types of change in circumstances or proper cause cannot be such things that would be considered a normal life change. Normal life changes are such things as the child growing older and wanting to participate in more activities due to a changing social, sport or activity schedule, remarriage of one spouse, move to a better home with better amenities, changes in the employment status of a parent, very young children starting to attend school or other types of changes that occur when a child develops and grows.
These types of changes are generally not allowed as proof that a change of custody should even be considered. The courts and friend of the court referees also (in many counties) would not even consider a modification of the parenting time schedule, either to allow more child visitation or less, without this same type of evidence. Therefore, unless a parent could show as a threshold issue that there existed some serious issue with the children or the custodial parent, then their arguments for a parenting time modification would not even be considered.
There was really no published Michigan Court of Appeals case or Michigan Supreme Court case that dealt directly with this. There have been unpublished opinions from the Court of Appeals, however, unless a case is published it is not precedent. What this means is that the trial courts and friend of the court referees do not have to follow what the Court of Appeals has said in a case regarding any given issue unless it is a published case. To make things more confusing, the unpublished cases decided by the Court of Appeals regarding this issue conflict with one another. Some indicate that one did have to prove the same type of threshold issues in order to obtain more child visitation or limit the child’s time with the other parent as one would with custody and other opinions stated that one did not have to prove this threshold issue or that the burden of proof was lower.
The Michigan Court of Appeals issued a new published decision on December 3, 2010, Shade v Wright, Mich. App Docket No. 296318 (2010) which held that it should be, and now is due to this case, easier to change the parenting time schedule than it is to alter custody. This case stated that in order to decrease or increase child visitation with a parent there is a more relaxed burden of proof regarding a change of circumstances or proper cause as a threshold issue than there is with custody. The court went further and stated that normal life changes such as those described above are properly considered when deciding this issue.
In the Wright v Shade case cited above, the change that allowed the mother to change the child’s visitation with the father was that their daughter had started high school and her schedule of activities changed. This is exactly the type of change that trial courts specifically can not consider in order to change custody. Many trial courts and friend of the court referees also believed, before this opinion, that this was exactly the type of change of circumstances that they could not consider in order to allow a change to either increase or limit child visitation. Those courts and referees that believed this were wrong and hopefully they will now follow this case when considering these issues because Wright v Shade is binding precedent.
This makes sense mainly for the following reasons. The primary concern with child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, while in contrast the purpose of parenting time is to foster a strong relationship between the child and the child’s parents. The parenting time statute states that it is presumed to be in the best interests of a child for the child to have a strong relationship with both parents and that parenting time shall be granted in a frequency, duration and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.
One must also consider that as children grow, they are involved in different activities. As their developmental needs change, both parents must be flexible with their parenting time schedule as much as it may pain the parent. Early in a child’s development, a child requires more frequent contact with each parent, but the duration may be shorter. As child becomes older the contact may be less frequent but of greater duration. When a child reaches school age, school and associated activities must be considered. The practical implication of a child growing older is that the child’s schedule and their need for parenting time will change and therefore, the parenting time schedule must be modified to meet the child’s development.
Parenting time is for the child, not the parent as much as the parent may enjoy the time with the child. Children do grow older and as they grow older their relationship with each parent will most likely change as they hopefully grow more independent. As much as it may pain a parent, their own child visitation may have to change to allow the child to find his or her own path which may have the child spend more or less time with either parent despite what the court has previously decided or the parent’s previously agreed.
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