Sometimes you know right away that an arrangement isn't going to work. Other times, something may change to make what was once a good idea no longer possible. When those changes involve your children, it can cause emotions to run high. You may need to know how soon you can change custody after a judgment is entered, and what you will need to do to get a parenting time schedule that works for them.

Child Custody Orders are Enforceable by the Court

Before you start considering changing your children's child custody and parenting time arrangement, you need to remember that they are set by court order. Any order entered by a judge is the law to the parties in the case. It must be followed unless and until a new order is entered. That means you can't just decide to change custody. You will need the Court's permission first.

Agreements to Change Custody

Sometimes, everyone involved in a child's life knows that something needs to change. Maybe your kid is having behavioral problems at school or has begun a new extracurricular activity with a demanding after-school schedule. Maybe long-term construction, work scheduling change, or a move has simply made it impossible to arrive at parenting exchanges on time.

In these cases, you may not need to file a motion or head back to court. Remember that in most child custody cases, the parties are granted joint legal custody, and are instructed to co-parent to promote the child's best interest. That could well mean agreeing on adjustments to the custody and parenting time schedule to suit your kid's needs.

However, if you do, try to avoid just informally doing something different than the court order says. This can lead to enforcement problems later on. Instead, document your new plan in a signed agreement (with both parties' signatures), and send it to the Friend of the Court or the Trial Court, asking for an updated order. That way, if things change or your co-parenting relationship breaks down, you'll be able to enforce the new agreement, rather than just the old order.

Filing a Motion to Modify Custody

If you and your co-parent can't agree on a change, you will need to file a motion to modify custody in the court that entered your original order. Legally speaking there is no strict time limit to how soon you an change custody. However, there is a practical limit. Under the Child Custody Act, the Court will only reopen custody if you, as the moving party, can demonstrate that there is proper cause or a change of circumstances since the entry of the last order to do so.

Proper Cause

The term “proper cause” is a little hard to define. It basically means there is a good legal basis to do the thing you are asking the Court to do. When it comes to Child Custody, this generally requires a demonstration that the existing custody order isn't working for some very obvious reason. In the most severe cases, “proper cause” may be the substantiation of a Child Protective Services investigation into your co-parent, or your child being expelled from the school they were ordered to attend. In less severe instances, proper cause may have to do with impossibility, such as unreasonable travel times, or a requirement that a parent pick a child up somewhere they simply will not be.  

Change in Circumstances

More often, a motion to modify custody will be based on a change in circumstances. This is what it sounds like: a motion that says something has changed since the last order was entered and because of that, the Court should change the existing custody and parenting time arrangements.

The size of the change needed to meet the threshold to reopen custody and parenting time depends on the size of the change you are requesting. If you just want to change which day your midweek overnight will occur or adjust the days of your parenting time, even routine changes like a schedule change at work may be enough. However, if you want to completely rewrite your custody order in a way that will change your child's established custodial environment with one or both parents, you will need to show that the change in circumstances is having a substantial impact on your child's best interests.

Limits to Evidence that Change is in Your Child's Best Interest

For the most part, whether your motion is based on proper cause or a change in circumstances, you should be focused on what has happened since the last custody or parenting time order was entered. The Court can look back further to establish patterns of behavior, especially when finding proper cause. However, the most persuasive evidence that something needs to change will also be the most recent. You may even be prevented from presenting evidence from prior to the last hearing in your case. 

Don't try to build a case for how bad your co-parent has been over the years. Instead, focus on what's happening now and how it is impacting your child's health, wellbeing, or personal or educational success. Keep the focus on your child, and try to avoid framing the issue as a matter of convenience or frustration for you as a parent.

What Happens if You File a Motion to Change Custody Too Soon?

There are some families who seem to never be far from the courthouse. New motions to modify custody and parenting time may be filed two or three times a year, creating a revolving door of evidentiary hearings and attorney fees. This doesn't help anyone, especially not the children caught in the middle.

Judges know the parties who file motions to change custody at the drop of a hat. These parents develop reputations for being unable to work together. That reputation can work against the parents, similar to the old folk story “The Boy Who Cried Wolf.” If you file a motion to change custody too soon, or based on too little evidence that something has changed, your motion will be denied and it will become harder to convince the Court to reopen your case when bigger changes happen later on.

Get Help Deciding When to File a Motion to Modify Custody from a Michigan Family Lawyer

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 negotiate parenting time adjustments with your co-parent, decide whether a motion to modify custody is appropriate, and advocate for your child's best interest. Call us at 248-651-4114 or contact us here to speak to an attorney.