Child Custody Motions – Requirements and Pitfalls

Lots of people who get divorced, whether they have an attorney or not, believe that as soon as the divorce judgment is entered, the case is over. If you don't have children, many times that holds true, however in family law, absolutely nothing is for life. Several Courts will not tell you that, and lots of lawyers that exercise family law won't encourage customers concerning the truth that custody, parenting time, child support, and failures to comply with the terms of a judgment of divorce, together with a list of other potential concerns, are all reviewable by a Court and can change, if one party can verify to the Court that an adjustment is needed. Apart from child and spousal support, the most typical post-judgment motion for modification of a judgment in family law cases includes custody of a child or multiple children. When these motions are filed by unrepresented persons, or by attorneys that are not accustomed to family law, they are usually unmerited or aren't really asking for a modification in custody, however instead, are looking for to increase or decrease one party's parenting time.

What is Child Custody?

While this might look like a straightforward or silly inquiry, it indicates something very specific in Michigan law, and is frequently misinterpreted by both litigants and attorneys that practice in this field. In Michigan, the term "custody" is used as the colloquial for what family attorneys called "legal custody." The term "legal custody" in its most basic iteration means, who gets to make major decisions for the child, such as where they go to school, should they have a major medical procedure, or where does the child go to church and in what religious denomination should they be raised. Typically, the Courts accept a joint legal custody model, which permits both parents to have input in these choices, and require that both parents go over those concerns and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what people consider initially when they talk about or consider child custody. Many folks consider who physically has the children with them and for what amount of time. Colloquially, this form of custody is known as "physical custody." In Michigan, while numerous Courts acknowledge motions for adjustments to physical custody, in Michigan, the term "physical custody" is not usually identified as the proper terminology to use for this idea. Instead, the Courts and most lawyers who practice in this area, speak about "parenting time," when determining how much time each parent should have with the minor children.

Evaluating Changes in Child Custody.

Initially, litigants need to recognize what they are asking the Court to do. When a parent wishes to make a motion to change custody, good legal representatives will see to it to discover exactly what it is the customer intends to do. In some cases, a motion to boost or reduce parenting time is better suited, and in some cases, is a lot easier to show. Occasionally, a party may just wish to ask the Court to decide on a legal custody issue where the moms and dads can not agree, despite the fact that they might generally agree concerning other decisions. Some examples would be a change of school districts (change of schools motion), or a motion for one parent to move greater than one hundred miles from the child's present county of residence (change of domicile motion). A lot of those sub-categories of change of custody motions have certain and different demands that should be proven to the Court in order for a party to be successful. Nonetheless, when a parent does in fact wish to change legal custody of a child, there is a set of legal procedures that a party should show the Court both in their motion, and, inevitably, through proof presented at a hearing.

Custody Hearings Call For Process and Patience.

Informing the Court that the other party is bad and won't agree with you regarding anything is not going to be enough to modify legal custody, even if that is true. The other party will merely say you are at fault and the Court will certainly have no way to determine that is actually the bad actor. In those scenarios, the Court merely shakes its finger at both parties and says "get along and identify a method to make things work." In cases where one parent really is the bad actor, that result is extremely aggravating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which a skilled family law attorney can supply support in doing. In all custody motions, the party that wants a change has to show that that there has actually been a "change in circumstances" that has happened since the last custody order was entered by the Court. The adjustment can not be a normal life modification (puberty, changing from middle to high school, getting braces), but have to be substantial adjustment in the life of the child that has an impact on their each day life. Since each situation is distinct, litigants should talk with counsel regarding their situation before figuring out whether the change that parent is declaring satisfies the legal needs. If you can reveal a change in circumstances, after that the Court should establish whether the child has an established custodial environment (ECE) with one, both, or neither parent. An ECE exists where the Court finds that the child or children look to the parent for love, advice, affection and the necessities of life. The ECE determination by the Court sets the standard of proof the relocating party will need to reach in order to obtain the asked for change of custody. If the Court identifies that the ECE will not alter as a result of approving the moving party's motion, after that the standard of proof is a prevalence of the proof (just a little bit greater than 50%) that the modification of custody would certainly be in the child's best interests. If the ECE will transform as a result of the motion, then the standard of proof is clear and convincing evidence (simply a little bit less than the criminal requirement of beyond a reasonable doubt and significantly more than preponderance of the evidence) that the change would be in the child's best interests.

Best Interests of the Child Standard.

If a change of circumstances has actually been shown, and the Court has made its resolution relating to established custodial environment, after that, despite the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Several litigants believe that the more bad things they can claim concerning the other parent, the most likely they are to win. Nonetheless, that is commonly not true. Actually, the Courts normally pay little attention to the feelings of the parties for each other. Rather, they are concentrated on what is best for the child and the child's well-being. Oftentimes, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will consider that with suspicion, and will frequently begin an inquiry regarding whether the aggressive parent is saying negative aspects of the other party in front of the child. If the Court thinks that is taking place, that can back fire, and cause the parent seeking the modification to actually lose parenting time or potentially custody of the child where they had actually started out trying to get more. The Court is not thinking about the back and forth between moms and dads. They should focus on the twelve best interest factors set forth in the Child Custody Act when making their decision concerning just how to make a decision a custody motion. Another common mistaken belief is that the factors are a straightforward mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have specifically denied this kind of mathematical computation, and rather, have gone over the complex interplay of the factors and the weight that Courts should offer to each one.

Bottom Line.

Custody motions are complicated. Many litigants are ill equipped to handle them without legal help. Whether you wish to file a motion, or if you are defending one, seasoned legal counsel is necessary. Family law lawyers recognize the intricacies of these motions and what it takes to be successful in submitting one. If you are thinking about filing such a motion for a change of custody, parenting time, or any of the sub-issues that develop from legal custody conflicts, your best choice is to speak with a seasoned family law lawyer that can help you make the very best decision for your conditions.

lawyer