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BlogsPublications | March 14, 2017
3 minute read

COA holds that proposed parenting-time change alters the established custodial environment.

In John Allen Lieberman v Kimberly Ann Orr, No. 333816, the Court of Appeals held the trial court erred in this child custody matter by granting plaintiffs motion for a change in physical custody. The Court held the trial court should have applied the legal standards set forth in Vodvarka to determine whether “proper cause” or a “change of circumstances” was sufficient to reopen the custody issue.

In 2016, Plaintiff filed a motion to “modify parenting time and change schools,” requesting “essentially that the parties swap the current parenting time schedule.” Plaintiff based his motion on concerns about the children’s academic opportunities and one child’s academic performance. Accordingly, the trial court determined that plaintiff had to prove by a preponderance of the evidence that changing schools was in the best interests of the children. After addressing all of the statutory best-interest factors pursuant to MCL 722.23, the trial court concluded that a preponderance of the evidence showed that changing schools was in the children’s best interest. Accordingly, the trial court granted plaintiff’s motion to modify parenting time, reversing the existing parenting-time order so that plaintiff had 225 overnights per year, and defendant 140. In doing so, the trial court reduced the children’s overnights with defendant by 85 days.

Plaintiff asserted that the relevant legal framework governing his motion was set forth in Shade v Wright, 291 Mich App 17, 25-28; 805 NW2d 1 (2010), under which normal life occurrences can constitute a change in circumstances sufficient to proceed to an evidentiary hearing regarding whether the proposed modification of parenting time was in the children’s best interests. Defendant also filed a motion to dismiss plaintiff’s motion on the ground that, notwithstanding its label, it was actually a motion to change custody, and plaintiff had not made the threshold showing of a proper cause or change in circumstances as set forth in Vodvarka.

The Court agreed with defendant on appeal that, not only did the proposed change affect the established custodial environment the children had with plaintiff, but effectively changed primary physical custody of the children from defendant to plaintiff without reviewing plaintiff’s motion under the correct legal framework. The Court held even if the trial court had been correct in treating plaintiff’s motion as one to modify parenting time, because the proposed modification would modify the children’s established custodial environment, Vodvarka remained the proper threshold standard before evaluating whether such proposed modification was in the best interests of the children. Shade, 259 Mich App at 27.

Therefore, in a parenting-time matter, where the proposed change does not affect the established custodial environment, the movant must prove by a preponderance of the evidence that the change is in the best interests of the child. Shade, 291 Mich App at 23. However, in this case the proposed parenting-time change alters the established custodial environment, the proposal is essentially a change in custody, and Vodvarka governs. Shade, 291 Mich App at 27.

For this reason, the Court concluded that the trial court erred its choice and application of the legal framework under which to analyze plaintiff’s motion. Thus, the proper legal standard under which to review plaintiffs motion was the more burdensome and restrictive standard set forth in Vodvarka, not the less restrictive legal framework set forth in Shade. The first issue the trial court had to consider was whether plaintiff established proper cause or a change in circumstances that met the standards set forth in Vodvarka. For these reasons, the Court vacated the trial court’s order and remanded for further proceedings in compliance with the statutory requirements of the Child Custody Act and relevant case law regarding a change of custody.

In the dissenting opinion, Judge O'Connell argued that it is not the children’s physical custody that is of concern; it is the children’s custodial environment. Thus, he did not believe this was a change in custody case, rather that this was a factually complex parenting time case in which the trial court ultimately held the children’s educational needs paramount to the parents’ dispute over which of them should have more time with the children.