Child Custody Motions Must Be Properly Labeled

The Michigan Court of Appeals has considered a number of family law cases this term, including the case of John Lieberman and Kimberly Orr. The Court of Appeals was forced to answer the Shakespearean question, “What’s in a name?”

As it turns out, a rose by any other name remains a rose. In this case, a change in custody is a change in custody, even if the parent requesting it purports to only be changing parenting time.

John and Kimberly Lieberman divorced in 2008. [Explaining the procedural history of their divorce and subsequent custody litigation would take more time to read than the War and Peace, so we’ll spare you the grief.] It is enough to say that by the time the motion that is the subject of this appeal was filed, John and Kimberly were veterans of the family court system in multiple counties.

In May 2016, John filed a motion to “modify parenting time and change schools“. At the time, the parties had joint legal custody of the children, and Kimberly had primary physical custody. John had parenting time three weekends out of each month, and had parenting time for all but the first and last weeks of summer vacation. Various allegations were made, but the trial court, in granting John’s motion, relied heavily on the youngest child’s poor academic performance and minor hygiene issues while in Kimberly’s care.

The factual arguments advanced in the case are fairly straightforward; the family court judge applies those facts to the statutory “best interest” factors. Before arriving at that point, however, the trial court judge must first make a series of threshold determinations.

When a party seeks to modify a pre-existing parenting order, as John did in filing his motion, they must show either proper cause or a change in circumstances. Adding to the complexity, proper cause or change in circumstances take on different meanings depending on whether the parent is requesting a change in custody or simply a change in parenting time.

The courts recognize that changes in parenting time are often necessary as a child grows older, parents experience job changes, etc. For that reason, the threshold for requesting a change in parenting time is low, any normal life change will suffice.

In addition to enjoying a lower threshold, motions to change parenting time also have a lower standard of proof. The moving parent must show by a preponderance of the evidence that the change is in the best interest of the child.

A change in custody is a major disturbance in the life of a child, and as such, must meet a higher threshold and a higher standard of proof. A parent seeking to change custody must show that a major change has occured that will have an effect on the minor child. For a court to issue an order that changes custody or the established custodial environment it must find that a major change has occured and that the proposed change is in the best interest of the child by clear and convincing evidence.

The Child Custody Act defines the established custodial environment as the home or homes where “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 trial court granted John’s request and entered an order changing the parenting time schedule and allowing him to enroll the children in a new school. In making its ruling, the trial court held that it was a motion to change parenting time and that the lesser standard, preponderance of the evidence, applied.

Kimberly appealed the family court to the Court of Appeals; that was not persuaded by John’s argument that the motion sought only to change parenting time. The opinion, published on March 7, 2017, held that the proposed change constituted a change in physical custody, thus triggering the increased threshold and heightened standard of review.

In its opinion, the Court of Appeals went further and stated that the heightened standard and threshold should have been used even if the proposed change was only a modification in parenting time because of the change to the established custodial environment.

For us family law practitioners, this means that how motions are titled does matter. Lawyers practicing in family law can no longer masquerade a custody motion in the cloak of a parenting motion.

If you or a family member have a custody or parenting time issue, contact our law firm to schedule a free consultation.