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To modify physical custody of child, must establish material change and significant effect on child's well-being.

Plaintiff appealed the trial court's order denying plaintiff's motion to modify physical custody of two of the parties' minor children. In 2014, a consent order was entered wherein the parties agreed to share joint legal custody of all three children, with plaintiff having primary physical custody of the eldest child and defendant having primary physical custody of the two other children. In May, 2016, plaintiff filed a motion to modify custody, essentially seeking primary physical custody of the parties' two minor children based on a purported change of circumstances.

To demonstrate a change of circumstances as set forth in MCL 722.27(1)(c), the moving party must establish that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child's well-being, have materially changed. Not just any change will amount to a change of circumstances, rather, the evidence must amount to more than normal life changes that occur during the child's life. There must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. The party moving to alter custody bears the burden, by a preponderance of the evidence.

To establish "proper cause" necessary to revisit a custody order, moving party must prove an appropriate ground for legal action. The appropriate ground should be relevant to at least one of the twelve statutory best interest factors.

Plaintiff's motion was based upon allegations that since the last custody order of June 2014, the middle child's grades have fallen drastically, his friends appear to be engaged in drug use, sexual activity and racism, that physical and emotional bullying also have become issues among the child and his friends, and that defendant is unable to properly address these issues.

There was no indication in the record that defendant was not competent or willing to parent the child or to discipline him, and the record confirms that she has a close relationship with the child, that he confides in her, and that she has sought the assistance of both medical and school professionals when necessary to help and support the child. Further, defendant may have been surprised by plaintiff's allegations about the child's alleged behavior and activities at the hearing on plaintiff's motion, because plaintiff did not make defendant aware of what was going on, a fact that justifiably raised the ire of the trial court. When plaintiff did share information at the hearing, defendant appeared to take the issues very seriously and wanted to obtain more information to help and protect the child. Contrary to plaintiff's assertion on appeal, the trial court's decision to not hold a child custody hearing was grounded in its recognition that a change of circumstances had not been demonstrated that warranted a hearing, rather than, as plaintiff asserts, any concern on the part of the trial court that the parties' acrimony and lack of communication had caused the child's struggles.

Court of Appeals review of the record confirms that the trial court's conclusion that proper cause and a change of circumstances did not exist to warrant modifying custody.

Nothing is more important to parents than their children. If you are involved in a divorce or other family law matter that impacts your custody and parenting time rights, it is critical that you retain a highly qualified family law attorney.

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