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FAMILY LAW 58: The trial court did not err by denying defendant-father’s motion to change custody and modify his parenting time of the parties’ child without having an evidentiary hearing to determine if there was proper cause or a change in circums

This case arose from a custody and parenting-time dispute between plaintiff-mother and father over their minor child. After father failed to respond to the paternity complaint within the 21 days of receipt of the complaint, mother filed an affidavit requesting entry of a default judgment, which was served on father with a notice that the issue would be heard. At the support establishment hearing before a referee, the prosecutor requested entry of the proposed filiation and custody orders and stated that father “failed to reach out to [the prosecutor’s] office or ask for any type of genetic testing. He did not call [the prosecutor’s office], file any paperwork, and as a result, [the prosecutor’s office] defaulted him with the Clerk of the Court.” The default judgment of filiation was served on father, and the default judgment stated that the order would become final if no objections were filed and noticed for a hearing within 21 days of service.

Father later filed a motion seeking a change in custody to joint legal and physical custody and a modification of parenting time to equal parenting time. In his brief in support of his motion for a modification of custody and parenting time, father argued that there was proper cause or a change in circumstance sufficient to warrant reevaluation of custody and parenting time because sole legal and physical custody of the minor child was granted to mother without addressing the best-interest factors. The trial court denied defendant’s motion because it did not find a factual basis upon which to revisit the issue of custody. Father argues on appeal that the trial court erred by denying his motion to modify custody and parenting time without an evidentiary hearing and without making any factual findings regarding the existence of proper cause or a change in circumstance, despite the allegations contained in father’s motion in support of such findings.


 All custody orders must be affirmed on appeal unless the circuit court’s findings were against the great weight of the evidence, the circuit court committed a palpable abuse of discretion, or the circuit court made a clear legal error on a major issue. This Court reviews the trial court’s custody determinations for an abuse of discretion and any questions of law for clear error. A trial court commits clear error by incorrectly choosing, interpreting, or applying the law.


Under Michigan’s Child Custody Act, when a custody dispute arises, a party may seek to “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances.” As a threshold matter, the party seeking a change in custody must first establish a change in circumstance or a proper cause by a preponderance of the evidence before the trial court may reevaluate a previous child custody decision or hold a child custody hearing. Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary hearing on the topic.  In this case, the default order of filiation determining custody of the minor child was entered without father’s consent and without the trial court’s consideration whether the custodial arrangement was in the child’s best interests. See id. Therefore, as an initial matter, the trial court was permitted to consider evidence that defendant submitted regarding significant events that occurred before the default judgment was entered in determining whether proper cause existed. However, the trial court was still limited to circumstances that occurred after the entry of the default judgment when considering whether there was a material change in circumstances.  Minor allegations of contempt or visitation complaints are insufficient to establish proper cause of a material change in circumstances to warrant a reevaluation or a child custody order. Similarly, father failed to specify how any misrepresentations regarding his relationship with mother affected the custody of the minor child. Therefore, none of the facts alleged by father in his motion established by a preponderance of the evidence the requisite proper cause or change in circumstances to warrant review of the custody order.


Therefore, because the facts alleged in father’s motion for modification of custody and parenting time failed to establish the threshold requirement of proper cause or a material change in circumstances to warrant a reexamination of the previous custody order, the trial court did not err by denying father’s motion for lacking “a factual basis set to revisit the issue of custody. Moreover, the trial court did not err by declining to hold an evidentiary hearing on the threshold issue of proper cause or change in circumstance because such a hearing is generally not required. We affirm the trial court’s custody order because the trial court did not err or make findings of fact against the great weight of the evidence.


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