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The legal threshold for reviewing custody orders

We all know that children change substantially as they get older, enter teenage years, etc. Sometimes the changes seem drastic to a parent, yet are those changes sufficient to meet the legal threshold for reviewing a custody order? The Court of Appeals has firmly answered “no.”

In the case of Gerstenschlager v Gerstenschlager, published on May 19, 2011 (COA No. 300858, for publication), the Court reversed a trial court order changing custody after a hearing. The Court of Appeals held that the court should never have held the evidentiary hearing because the moving party (the father, in this case), had not demonstrated the Vodvarka “proper cause” or “change of circumstances” warranting an evidentiary hearing. Dad alleged that his son wanted to live with him, his mother (the custodial parent) had taken in boarders, and that the boy was entering into his teenage years. The trial court agreed, finding that the boy becoming a teenager and the boarders constituted a change in circumstances. One would think that the combination of factors would have met the preponderance of the evidence standard, but the Court of Appeals found that it did not.

This case sends a clear signal to trial courts that the Vodvarka standard must be applied and that evidentiary hearings on change of custody motions should not be routinely granted.