Vodvarka Threshold Not Met: Trial Court Correctly Denied Father’s Request To Modify Custody Order
The trial court properly denied the plaintiff-father’s request for joint legal custody because his allegations did not meet the threshold requirement established by Vodvarka v Grasmeyer to allow further inquiry into whether the prior custody order should be modified, the Michigan Court of Appeals has ruled.
The plaintiff-father and the defendant-mother in Herman v Herman (Docket No. 378133) had two children, GH and RH, during their marriage. In 2015, they entered into a consent judgment of divorce and the Kent County Circuit Court awarded the defendant sole physical and legal custody of the children. The plaintiff was initially awarded parenting time on alternating weekends and on Wednesday evenings. Over the years, the plaintiff filed motions for joint legal custody and modification of parenting time.
The present case involves the plaintiff’s 2025 motions, in which he asserted:
the defendant “inappropriately” showed the children the plaintiff’s social media post about the shooting of political activist Charlie Kirk.
the defendant violated a court order by missing a mid-week phone call in May 2025.
the defendant blocked the plaintiff from being added as a family member to a sports app used by GH’s coaches.
According to the plaintiff, the defendant’s actions constituted proper cause or a change of circumstances to review the custody order. He further contended the children lacked a parenting-time schedule “sufficient in frequency, duration and type to foster a strong bond with him,” and the existing order no longer served the children’s best interests. The plaintiff specifically requested that 1) the matter be referred to the Friend of the Court (FOC) for investigation and recommendations, 2) a guardian ad litem (GAL) be appointed to assess and recommend steps to “safeguard the children’s rights,” 3) a “neutral therapist” be appointed for the children and 4) the trial court either interview the children in camera or have them speak to the FOC.
Ruling from the bench, the trial court found there were no change of circumstances and, therefore, it denied the plaintiff’s motion for joint legal custody. The trial court also denied the plaintiff’s request for modification of parenting time, concluding that parenting time was “going well for the children.” It also denied the plaintiff’s requests for appointment of a GAL and an in camera interview of the children, finding it was “not appropriate” in the case. The plaintiff appealed.
The Court of Appeals affirmed.
“The trial court did not err when it denied plaintiff’s request for joint legal custody of the children because plaintiff’s allegations did not meet the Vodvarka v Grasmeyer, 259 Mich App 499 (2003)] threshold required to permit further inquiry into whether the previous custody order should be modified,” the Court of Appeals said.
As for the plaintiff’s motion to modify parenting time, although the trial court erred by failing to consider the proposed modification’s effect on the children’s custodial environment, “that error was harmless,” the Court of Appeals said.
Moreover, the trial court’s decision not to appoint a GAL “was supported by the record and did not constitute an abuse of discretion,” the Court of Appeals held.
Court of Appeals Judges Thomas C. Cameron, Mark T. Boonstra and Brock A. Swartzle were on the panel that issued the unpublished opinion.
Vodvarka Standard Not Met
In its analysis, the Court of Appeals first addressed the plaintiff’s argument that the trial court erred by denying his motion for joint legal custody “without explaining its reasoning, addressing his new allegations, conducting an evidentiary hearing, determining the children’s established custodial environment, or considering the statutory best-interest factors” in MCL 722.23.
“We disagree,” the Court of Appeals said, citing the Child Custody Act of 1970 (MCL 722.21 et seq.).
The Court of Appeals noted that, under Vodvarka, “A movant seeking a modification of custody must first show by a preponderance of the evidence that proper cause or a change of circumstances exists that would warrant a custody hearing. … The grounds must be relevant to at least one of the 12 statutory best-interest factors under MCL 722.23 and ‘must be of such magnitude to have a significant effect on the child’s well-being.’ … A ‘change of circumstances’ requires proof 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.’ … Moreover, ‘the movant cannot rely on facts that existed before entry of the custody order,’ and the change must have occurred after the last custody order.”
This Vodvarka threshold requirement exists to “erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders,” the Court of Appeals observed. “When a court determines that the proper-cause or change-of-circumstances threshold is not met, it need not proceed to consideration of the established custodial environment or analysis of the best-interest factors.”
In this case, “[t]he trial court’s finding that there was ‘no change of circumstance pled to consider a referral to review the joint legal custody issue’ operated as a threshold determination that plaintiff’s allegations, even if accepted as true, did not meet the Vodvarka standard,” the Court of Appeals said. “The record supports this determination. The trial court did not expressly address proper cause, but to the extent that this was erroneous, we are convinced that the error was harmless.”
The plaintiff’s allegations about the Charlie Kirk social media post and the defendant’s alleged interference with his access to information about the children “do not demonstrate conduct of a magnitude that would ‘have a significant effect on the child’s well-being’ so as to constitute proper cause or a change of circumstances sufficient to warrant a reevaluation of legal custody,” the Court of Appeals explained. “The allegations involved a single, discrete incident in which defendant allegedly showed the children plaintiff’s post after the [Charlie Kirk] shooting.”
Likewise, the plaintiff’s claims regarding access to the children’s academic and extracurricular information “do not rise to the magnitude required to establish proper cause or a change of circumstances,” the Court of Appeals stated. “The[] allegations appear to involve scheduling-coordination issues rather than interference with plaintiff’s fundamental relationship with his children.’”
Moreover, “the trial court’s decision to deny plaintiff’s motion without holding an evidentiary hearing did not violate his due-process rights,” the Court of Appeals said. “Even if proven through an evidentiary hearing, plaintiff’s allegations involved isolated incidents and coordination disputes in the context of a longstanding, stable custody arrangement in which the parties did not dispute that the children demonstrated academic and extracurricular success.”
Further, the Court of Appeals said the trial court did not commit clear legal error by denying the plaintiff’s motion without considering the children’s established custodial environment or the statutory best-interest factors. “When a court concludes that the threshold showing for revisiting a custody order is not met, the court need not proceed to the determination of established custodial environment or analyze the best-interest factors. … These detailed findings become necessary only when a court reaches the merits of custody modification after the Vodvarka threshold is satisfied. In this case, the trial court’s finding that plaintiff failed to establish a change of circumstances under Vodvarka reflects proper application of the legal standard to the facts presented. Although the trial court did not expressly address proper cause, the record supports the trial court’s legal conclusion that father’s allegations did not meet Vodvarka’s threshold requirements.”
Because the plaintiff’s claims did not meet the Vodvarka threshold, “the trial court did not err by denying plaintiff’s motion for joint legal custody without proceeding to determination of the children’s established custodial environment and analysis of the best-interest factors, and the trial court’s alleged failure to articulate its reasoning for the denial was harmless error,” the Court of Appeals said. “Although the trial court did not expressly address proper cause, the record supports the trial court’s legal conclusion that father’s allegations did not meet Vodvarka’s threshold requirements, and the trial court accordingly lacked the authority to modify the previous custody order. Therefore, the trial court appropriately denied plaintiff’s motion.”
Parenting Time, GAL Arguments
Next, the Court of Appeals turned to the plaintiff’s claims regarding parenting time.
“This Court in Shade v Wright, 291 Mich App 17 (2010),] did not specifically define the type of showing necessary to establish proper cause or a change of circumstances involving a request for modified parenting time that did not affect a child’s custodial environment,” the Court of Appeals explained. “Rather, it determined that the kinds of normal life changes present in that case would not satisfy the Vodvarka standard, but they were sufficient to establish a change in circumstances sufficient to revisit parenting time. … After the decision in Shade, trial courts must consider whether the proposed change to parenting time would alter the child’s established custodial environment. … If the proposed change would alter the established custodial environment, then courts will treat the request as though it were a request to change custody and apply the more stringent threshold stated in Vodvarka.”
Here, the trial court “committed clear legal error by failing to follow the procedural steps established in Shade,” the Court of Appeals stated. “Nevertheless, on the basis of our review of the record, we conclude that the trial court’s error was harmless because it had no practical effect on the outcome of plaintiff’s motion. … As explained, the trial court did not err by concluding that plaintiff did not meet the stringent threshold stated in Vodvarka, so plaintiff’s request to modify parenting time fails if his proposed modification would alter the children’s established custodial environment.”
Further, “[e]ven if the modification would not alter the established custodial environment, plaintiff did not identify any normal life changes for the trial court to consider when determining whether to modify parenting time,” the Court of Appeals pointed out.
Lastly, the Court of Appeals examined the plaintiff’s claim that the trial court abused its discretion by denying his request for a GAL without providing any reasoning or addressing his allegations that the children’s well-being was at risk.
“We disagree,” the Court of Appeals said, noting that whether to appoint a GAL to is left to the trial court’s discretion. “The trial court simply denied plaintiff’s request for a GAL because the request was not ‘appropriate.’ MCR 3.204(D) does not require detailed findings explaining the exercise of that discretion. … Although the court’s statement is brief, the record demonstrates substantial evidence supporting the court’s exercise of discretion to deny plaintiff’s motion to appoint a GAL. The trial court’s determination that a GAL was ‘not appropriate’ reflected a reasonable conclusion that appointment would not enhance the children’s welfare, given that plaintiff’s allegations did not satisfy the threshold requirements for a change in custody or modification of parenting time.”
In conclusion, the Court of Appeals held: “The trial court did not err when it denied the plaintiff’s request for joint legal custody … because [his] allegations did not meet the Vodvarka threshold required to permit further inquiry into whether the previous custody order should be modified. Regarding plaintiff’s request to modify parenting time, the trial court erred by failing to consider the proposed modification’s effect on the children’s custodial environment, but that error was harmless. Finally, the trial court’s decision not to appoint a GAL was supported by the record and did not constitute an abuse of discretion. Affirmed.”
