Changing Custody

How to Seek a Change of Custody

If a parent believes that a change in custody is necessary, because of a "change in circumstances" or "proper cause" a motion may be filed with the court asking for a hearing regarding custody, and stating on the motion the reasons that a change is being requested.

Generally, the matter is referred to the Friend of the Court for an investigation and recommendation. The Friend of the Court will meet with the Parties and significant others, and will interview the minor child(ren). The Friend of the Court may refer the Parties for psychological evaluations, drug testing, or other evaluations to assist in the investigative process.

A motion may be filed by a party's attorney, or a Motion Regarding Custody, FOC 87, may be filed by an unrepresented parent. The parent seeking a change of custody must show by a preponderance of evidence (i.e. more than 50%) that there has been a "change of circumstances" or "good cause" to justify a review of custody. Generally, the "change of circumstances" or "proper cause" must have originated since the time of the filing of the last custodial order. Only upon such a required showing or proof will the Court continue a review of custody by analyzing the "best interest factors."

The Court may grant or deny the motion, order an investigation by the FOC, or set the matter for an evidentiary hearing. The court will always consider the "best interests" of the child in ordering a change in custody. The court will generally talk with the child or children before making a change in custody.

A change in custody will only be made if it is shown to be in the child's best interests by clear and convincing evidence if the child has an established custodial environment with one parent or the other. If there is not an established custodial environment with one parent or the other, a preponderance of the evidence must show that a change in custody would be in the child's best interest. You may obtain a Motion Regarding Custody form from the Friend of the Court Office.

The Friend of the Court will issue its written report and recommendation to the Parties and to the Court. The report and recommendation set forth general information, legal history, marital history, and the positions of both parties. The investigator will attempt to give a preference for each factor; either favoring the Plaintiff, favoring the Defendant, or indicating no preference. These preferences will reflect logical reasoning and will be supported by the facts of the case.

After analyzing the child custody factors, the investigator will include a conclusion and recommendation section. The recommendation is not based on the number of factors on which each party is given preference, as information under certain factors may carry more weight than information under others. The recommendation will address custody, a parenting time plan and support recommendations.

The investigator may also recommend such things as counseling, parenting classes, child transfers in public places, specific telephone contact with children, no controlled substances during parenting time or any other recommendations that would benefit the children.

The statatory "best interest" factors that the Court must consider when reviewing a motion seeking a change of custody are set forth in the Michigan Child Custody Act, MCL 722.23 as follows:

Best Interest of the child, definition

A. The love, affection and other emotional ties existing between the parties
involved and the child.

B. The capacity and disposition of the parties involved to give the child love,
affection and guidance and the continuation of the educating and raising of
the child in its religion or creed, if any.

C. The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care and other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material

D. The length of time the child has lived in a stable satisfactory environment,
and the desirability of maintaining continuity.

E. The permanence, as a family unit, of the existing or proposed custodial home
or homes.

F. The moral fitness of the parties involved.

G. The mental and physical health of the parties involved.

H. The home, school and community record of the child.

I. The reasonable preference of the child, if the court deems the child to be of
sufficient age to express preference. 

J. The willingness and ability of each of the parties to facilitate and encourage a close and
continuing parent-child relationship between the child and the other parent or the child
and the parents. A court may not consider negatively for the purposes of this factor any
reasonable action taken by a parent to protect a child or that parent from sexual assault
or domestic violence by the child's other parent.

K. Domestic violence, regardless of whether the violence was directed against,
or witnessed, by the child.

L. Any other factor considered by the court to be of relevance to a particular
child custody dispute.

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