You will have to follow the Court's current order until you have a new one. In order to get a new order you will have to bring a motion to change the parenting time and/or custody claiming that the current situation is not in the "best interest of the child" (what you will need to show the judge to get your motion granted). However, know that it is a lengthy process with many challenges.
Briefly, a trial court must consider three issues before modifying a custody order: (1) has the petitioner carried the initial burden of establishing either “proper cause shown” or a “change of circumstances;” (2) is there an established custodial environment; and (3) is the modification in the best interests of the child? (See MCL 722.23 for the factors the court considers and evaluates when making its determination regarding best interest of the child.) These preliminary steps to changing custody are intended to “erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Heid v AAASulewski (After Remand), 209 Mich App 587 (1995).
Similarly, when seeking to modify a parenting time order the court will consider the same best interest factors found in MCL 722.23; however, in addition to the best interest factors, MCL 722.27(a)(6) sets forth nine (9) factors that more specifically relate to the frequency, duration, and type of parenting time to be granted.
An important note, if a requested modification changes the "established custodial environment" will not be granted unless the trial court is persuaded by clear and convincing evidence that the change is in the best interest of the child. Brown v Loveman, 260 Mich App 576 (2004).
I suggest that if you plan to seek a change in custody to consult an attorney as when dealing with change of custody and/or parenting time the burden you must meet is high.
If you have any questions, please do not hesitate to contact my office at 616.610.0844.
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A child cannot choose where to live until they are 18. However, if you file a motion to modify custody based on a change in circumstances the Judge may consider the preference of the children. Ultimately, the Judge must decide based on all 12 of the child best interest factors.
DISCLAIMER: This answer is provided as general information, which may not be appropriate for the specific facts of your particular situation. No attorney-client relationship has been established based on this limited communication. You are advised to consult with an attorney in your jurisdiction before taking any action or inaction that may affect your legal rights. www.hecklerlawoffice.com
From a practical standpoint, you must consider how the children will behave when in the other home. Having two children that age who are miserable and unhappy will be difficult to live with. The other parent must certainly experience this. If not, maybe the other parent is ignoring it, maybe the children are not as unhappy as they say they are, or maybe the children are saying the exact same thing to the other parent before they are forced to leave that one to spend time with you.
Simply food for thought when deciding what to do. Good luck with your situation.
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