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  • Attorney Matt Berry

Michigan Court of Appeals Lowers Burden to Change Custody When No Prior Custody Order Exists

Updated: Oct 29, 2019

In December 2017, the Michigan Court of Appeals held that a parent seeking to establish or change custody does not need to show proper cause or change in circumstances when no previous judgment or order (i.e., judicial determination) concerning custody exists. In Sims v. Verbrugge, the unmarried parties signed an Affidavit of Parentage (AOP) when their child was born. A few months after the child was born and the AOP was signed, the county prosecutor brought a complaint against defendant for child support. A judgment against defendant for child support was eventually entered, and this judgment also granted sole physical custody to plaintiff. A parenting time arrangement was later entered by the parties.

Four years after the child’s birth, defendant filed a motion seeking joint legal and joint physical custody, but the trial court denied his motions on the basis that he had not met his burden of showing either proper cause or change in circumstances. Defendant appealed the ruling, and the Court of Appeals upheld the ruling on the physical custody issue (because the child support order included plaintiff having sole physical custody) but reversed and remanded the issue as to legal custody, stating that the AOP was not a judicial determination and there had yet to be any judgment or order concerning legal custody.

What does this mean and how does it affect you? In the most basic sense, it means that when no previous court order or judgment is entered concerning custody, either party can automatically receive a hearing to determine custody without the heightened burden of having to first show proper cause or change of circumstances. This is important especially for situations similar to Sims where many years have passed since the child’s birth, which can make it can be very difficult to prove proper cause or change in circumstances.

Signing an AOP is important because it establishes your rights as a parent. However, what’s also important to know and remember is that an AOP does not grant judicial (i.e., court-ordered) custody. The only way to get court-ordered custody is to petition the court and have an order signed by a judge.

If you or someone you know is a single parent and have questions concerning your custodial rights as a parent, please do not hesitate to call us and set up an appointment.


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