Child Custody Motions – Requirements and Pitfalls

Many individuals that 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 do not have children, lot of times that holds true, however in family law, nothing is for life. Numerous Courts will not tell you that, and numerous attorneys that exercise family law will not advise customers about the reality that custody, parenting time, child support, and failures to adhere to the terms of a judgment of divorce, along with a list of other possible concerns, are all reviewable by a Court and can change, if one party can verify to the Court that a change is essential. Other than child and spousal support, one of the most common post-judgment motion for modification of a judgment in family law cases involves custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by lawyers who are not familiar with family law, they are often unmerited or aren't really requesting a modification in custody, yet rather, are looking for to increase or reduce one party's parenting time.

What is Child Custody?

While this may seem like a basic or foolish question, it means something very specific in Michigan law, and is frequently misunderstood by both litigants and lawyers who exercise in this area. In Michigan, the term "custody" is used as the colloquial for what family lawyers know as "legal custody." The term "legal custody" in its easiest iteration means, that gets to make significant choices for the child, such as where they most likely to school, should they have a major medical treatment, 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 allows both moms and dads to have input in these choices, and require that both moms and dads go over those issues and agree before a choice is made. Usually, what we call legal custody in Michigan is not what individuals think about initially when they speak about or think about child custody. A lot of folks think of who physically has the children with them and for what amount of time. Colloquially, this kind of custody is called "physical custody." In Michigan, while lots of Courts identify motions for changes to physical custody, in Michigan, the term "physical custody" is not normally identified as the proper terminology to make use of for this concept. Instead, the Judiciaries and most legal representatives that exercise in this area, discuss "parenting time," when figuring out just how much time each parent should have with the minor children.

Evaluating Adjustments in child custody.

Initially, litigants need to understand what they are asking the Court to do. When a parent intends to make a motion to change custody, good lawyers will certainly make certain to discover precisely what it is the client intends to do. Occasionally, a motion to increase or lower parenting time is better, and in some cases, is a lot easier to confirm. Often, a party might just want to ask the Court to choose on a legal custody problem where the moms and dads can not agree, despite the fact that they may normally agree concerning other decisions. Some examples would be a change of school districts (change of schools motion), or a motion for one parent to relocate more than one hundred miles from the child's existing county of residence (change of domicile motion). A lot of those sub-categories of change of custody motions have specific and different needs that must be verified to the Court in order for a party to be successful. Nonetheless, when a parent does in fact wish to alter legal custody of a child, there is a set of legal procedures that a party need to show the Court both in their motion, and, ultimately, through proof offered at a hearing.

Custody Hearings Need Process and Patience.

Informing the Court that the other party misbehaves and won't agree with you regarding anything is not going to be enough to change legal custody, even if that is true. The other party will simply state you are at fault and the Court will certainly have no way to determine who is really the bad actor. In those scenarios, the Court simply shakes its finger at both parties and says "get along and discover a method to make things work." In cases where one parent truly is the troublemaker, that result is extremely frustrating. Rather, there is a process and procedure by which custody motions should be presented and argued, which an experienced family law attorney can provide aid in doing. In all custody motions, the party that desires an adjustment has to show that that there has actually been a "change in circumstances" that has taken place since the last custody order was entered by the Court. The adjustment can not be a normal life adjustment (puberty, changing from middle to high school, getting dental braces), but need to be substantial modification in the life of the child that has an influence on their each day life. Because each circumstance is unique, litigants should talk to counsel about their circumstance prior to figuring out whether the modification that parent is alleging satisfies the legal requirements. If you can show a change in conditions, then the Court needs to identify 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, support, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the moving party will certainly have to reach in order to obtain the asked for change of custody. If the Court establishes that the ECE will not alter as a result of giving the relocating party's motion, after that the standard of proof is a prevalence of the proof (simply a bit greater than 50%) that the modification of custody would remain in the child's best interests. If the ECE will certainly change as a result of the motion, after that the standard of proof is clear and convincing proof (simply a bit less than the criminal requirement of beyond a reasonable doubt and substantially more than preponderance of the proof) that the change would certainly be in the child's best interests.

Best Interests of the Child Standard.

If a change of circumstances has been revealed, and the Court has made its resolution regarding established custodial environment, after that, regardless of the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Numerous litigants think that the more negative things they can say about the other parent, the more probable they are to win. Nonetheless, that is typically not true. In fact, the Courts usually pay little attention to the feelings of the parties for each other. Instead, they are concentrated on what is best for the child and the child's well-being. Sometimes, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will look upon that with suspicion, and will frequently start an inquiry regarding whether or not the aggressive parent is saying unfavorable aspects of the other party in front of the child. If the Court believes that is happening, that can back fire, and cause the parent seeking the adjustment to actually lose parenting time or potentially custody of the child where they had actually started out attempting to obtain more. The Court is not interested in the back and forth between moms and dads. They should concentrate on the twelve best interest factors set forth in the Child Custody Act when making their decision concerning how to determine a custody motion. Another typical false impression is that the elements are a basic mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have actually expressly rejected this kind of mathematical computation, and instead, have actually gone over the complicated interplay of the factors and the weight that Courts should provide to each one.

Bottom Line.

Custody motions are complicated. A lot of litigants are ill equipped to manage them without legal support. Whether you want to submit a motion, or if you are defending one, knowledgeable legal advise is essential. Family law attorneys understand the complexities of these motions and what it takes to be successful in submitting one. If you are considering filing such a motion for a change of custody, parenting time, or any one of the sub-issues that arise from legal custody conflicts, your best option is to seek advice from an experienced family law attorney who can help you make the most effective decision for your scenarios.