Get More Time With Your Child by Lowering the Burden of Proof. Ask a Family Law Attorney.

The theme of this article is: The less you ask for, the more you get.  I have seen instances where a parent came to court and stated to the Referee or Judge “I want a modification of custody for my child!”  Legally, this statement translates to, “I want to obstruct my case with more legal hurdles.”

The problem is that there are two very tall hurdles a parent must face when asking for a change of custody.  The first hurdle is that the parent must show “proper cause or change of circumstances,” which is a strict standard to meet.*  The second hurdle is that, if an established custodial environment exists, the parent proposing the change must show that the change is in the best interests of the child by “clear and convincing evidence.”** This task is also very difficult because “clear and convincing evidence” is the highest burden of proof in the civil law system. 

So how does a parent get more time with his/her child without having to face these amazing hurdles?  One way is to lower the hurdles by framing the matter as a request for a change of “parenting time” instead of a change of “custody.”  It is easier to change parenting time because the law affords a more lenient standard for proper cause or change in circumstances.***  Additionally, when the proposed change does not alter the established custodial environment, the party proposing the change only has to show that it is in the best interests of the child by a “preponderance of the evidence.”****  “Preponderance of the evidence” is a much easier burden to battle than “clear and convincing evidence.” 

The Michigan Court of Appeals best summarized the rationale behind the distinction in standards between changes of custody versus changes of parenting where it stated:

Whereas the primary concern with child custody determinations is the stability of the child's environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child's parents.***** 

This is not to say that attempting to modify custody is never warranted.  Rather, the goal of this article is to merely point out that getting a court to order a change of custody is extremely difficult and getting a court to modify a change of parenting time is much easier.  Accordingly, even if a parent believes the relief he/she is requesting is truly a change of custody, when speaking to the court, it is still might be best to try to characterize the relief requested as a change of parenting time.  END.

*MCL 722.27; Vodvarka v. Graysmeyer , 259 Mich App 499, 513-514; 675 NW2d 847 (2003).

**E.g., See Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989).

***Shade v Wright, 291 Mich App 17, 28; 805 NW2d 1 (2010).

**** Pierron v Pierron, 486 Mich 81, 93; 782 NW2d 480 (2010).

*****Shade v Wright, at 28-29 (2010).

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Please note that the above blog article shall not constitute legal advice.  Accurate legal advice should be given on a case-by-case basis as its accuracy is relative to the particular facts of the given matter.

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Founder of Guardian Law, Anthony A. DeMatteis, is an attorney who concentrates in the area of Family Law.  Mr. DeMatteis promotes peaceful, constructive resolutions in domestic matters.  He practices in Macomb, Oakland, Wayne, and Livingston Counties.  His office and contact information is as follows:

Guardian Law
Law Office of Anthony A. DeMatteis, Esq.
14630 East Nine Mile Rd.
Eastpointe, MI 48021

(586) 662-1207; or
(586) 354-8616
anthonydematteis@gmail.com
guardianlaw24@gmail.com