Sometimes, a custody and parenting time order just doesn't fit anymore. Whether it is because of big changes in your life, or simply due to your children growing older, there are many reasons why you might want to modify custody or parenting time after a judgment is entered. Here is when and how you can reopen negotiations to serve your children's best interests.
Custody Judgments are Final Orders, But They Can Still be Changed
At the bottom of most judgments of divorce and custody orders there is language saying that they are the “final orders” that close the case. These custody orders are binding and enforceable. That means that (unless the specific language says otherwise), you and your co-parent must continue to follow the orders until you are told otherwise. You can't just unilaterally decide to do something else.
But in the world of child custody cases, final does not necessarily mean forever. Child custody and parenting time orders can always be modified if doing so is in the best interests of the children. What that means, and when you have met the threshold to request that change, will depend on the type of change you are requesting. Still, even if you and your co-parent disagree, you can still modify custody and parenting time after a judgment is entered with the Court's permission.
Modifying Custody or Parenting Time When the Parties Agree
The easiest and most straightforward way to modify custody or parenting time after a judgment is entered is to reach an agreement with your co-parent about the change. Sometimes this can happen informally, simply by texting the other parent to swap weekends or shift an exchange location.
For bigger, more permanent changes, it is a good idea to document your agreement (with both parties' signatures) and send a copy to the Friend of the Court in the county where your judgment was entered. You can also hire an attorney to help you write a “stipulated order” modifying your judgment to reflect what works best for your family. That way, if either parent stops following the new schedule, the Friend of the Court and the judge will have authority to enforce the change.
Can You Agree to Non-Modifiable Custody or Parenting Time?
But what about if your co-parent keeps asking for modifications? Can you ask for a set schedule that is not modifiable later? The short answer is no. Remember that the children's best interest will always control whether the Court will modify custody or parenting time. That means if your children's needs change, the court order could change too.
However, you don't have to agree to a change just because your co-parent asked for it. Though most judges prefer to see both parents making reasonable adjustments for the children's wellbeing, you do have the right to enforce the specific schedule in your judgment. If you feel like your co-parent is abusing the process, you can ask the Court to require that he or she proves something has changed to justify the requested modification.
When and How to File a Motion to Modify Custody or Parenting Time
If you need to modify custody or parenting time, you can file a motion in the Court that issued the judgment or custody order. You will need to show that there is either “proper cause or a change in circumstances” since the entry of the last order. This is the “threshold” that keeps parents from changing their children's established custodial environment every time it becomes inconvenient. The level of change required to meet this threshold depends on the change being requested:
Changes to Legal or Physical Custody are the biggest kinds of change. They require evidence of a substantial and material change that affects at least one of the twelve best interest factors, or some other justifiable reason that amounts to “probable cause” (such as a continuation or escalation of an existing health or safety concern). If the change would alter your children's “established custodial environment,” you need to be prepared to prove the change is in their best interest by “clear and convincing evidence” – the highest standard in family law.
Modifying Parenting Time is easier than changing custody. While you still need to demonstrate proper cause or a change in circumstances, ordinary life changes – like your child growing up and starting school or extracurricular activities, or your own relocation or changes in employment – can be enough to show that a change is necessary. However, that change will generally be limited to relatively small adjustments to the number of overnights within the existing parenting time schedule.
Changes to Conditions on Parenting Time (such as supervision, sobriety requirements, or transportation orders) have the lowest bar for modification. These conditions are often added as part of a larger motion to modify custody or parenting time. However, to have them removed or changed, you only need to show that it is no longer in the children's best interest to comply with them. Often, this takes the form of showing that a burdensome condition is no longer necessary because whatever the underlying problem was (such as a substance dependency or dangerous relationship) has been addressed.
Get Help Modifying Your Custody or Parenting Time Judgment from a Michigan Family Lawyer
Whether you need help documenting an agreement with your co-parent, negotiating its terms, or filing a motion in Court, you should always work with experienced family law attorneys to guide you through the process. At Bebout, Potere, Cox & Bennion, P.C., we care about you and your family. We help individuals and families in Rochester Hills, Rochester, Troy, Lake Orion, Oxford, Oakland County, Macomb County and throughout Southeast Michigan. We can help you modify your existing custody or parenting time order to serve your children's best interests. Call us at 248-651-4114 or contact us here to speak to an attorney.
