Child Custody Motions – Requirements and Pitfalls

Many people that get divorced, whether they have a lawyer or otherwise, believe that as soon as the divorce judgment is entered, the case is over. If you do not have children, often times that holds true, but in family law, nothing is for life. Several Courts will not tell you that, and lots of lawyers that practice family law won’t suggest customers about the reality that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, along with a list of other potential concerns, are all reviewable by a Court and can change, if one party can show to the Court that a change is essential. Besides child and spousal support, the most usual post-judgment motion for adjustment of a judgment in family law cases includes custody of a child or multiple children. When these motions are submitted by unrepresented individuals, or by lawyers who are not knowledgeable about family law, they are frequently unmerited or aren’t truly asking for a change in custody, but instead, are seeking to enhance or lower one party’s parenting time.

What is Child Custody?

While this may look like a simple or stupid concern, it means something very specific in Michigan law, and is commonly misinterpreted by both litigants and attorneys that exercise in this area. In Michigan, the term “custody” is used as the colloquial for what family lawyers called “legal custody.” The term “legal custody” in its simplest 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. Usually, the Courts accept a joint legal custody model, which allows both moms and dads to have input in these decisions, and require that both moms and dads review those concerns and agree before a decision is made. Typically, what we call legal custody in Michigan is not what people think of initially when they discuss or think of child custody. Many folks consider who physically has the children with them and for what quantity of time. Colloquially, this kind of custody is called “physical custody.” In Michigan, while lots of Courts recognize motions for modifications to physical custody, in Michigan, the term “physical custody” is not generally acknowledged as the proper terminology to utilize for this concept. Rather, the Judiciaries and most lawyers who exercise in this area, speak about “parenting time,” when determining how much time each parent should have with the minor children.

Evaluating Modifications in Child Custody.

Initially, litigants need to know what they are asking the Court to do. When a parent intends to make a motion to alter custody, good legal representatives will certainly ensure to learn specifically what it is the customer wants to do. Sometimes, a motion to boost or reduce parenting time is better, and sometimes, is a lot easier to prove. Sometimes, a party may only intend to ask the Court to make a decision on a legal custody problem where the moms and dads can not agree, despite the fact that they may typically 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 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 specific and different demands that must be proven to the Court in order for a party to be successful. However, when a parent does in fact want to change 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, inevitably, via proof provided at a hearing.

Custody Hearings Call For Process and Patience.

Telling the Court that the other party misbehaves and will not agree with you concerning anything is not going to be enough to alter legal custody, even if that is true. The other party will just claim you are at fault and the Court will certainly have no way to decide that is actually the bad actor. In those scenarios, the Court merely shakes its finger at both parties and says “get along and discover a means to make things work.” In cases where one parent truly is the bad actor, that result is very frustrating. Instead, there is a process and procedure by which custody motions should be presented and argued, which a knowledgeable family law lawyer can supply aid in doing. In all custody motions, the party that wants a change needs to show that that there has actually been a “change in circumstances” that has actually happened since the last custody order was entered by the Court. The modification can’t be an average life change (puberty, changing from middle to high school, getting dental braces), but have to be considerable change in the life of the child that has an effect on their each day life. Since each circumstance is unique, litigants should talk to counsel about their situation before identifying whether the change that parent is declaring fulfills the legal requirements. If you can show a modification in situations, after that the Court should determine 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, assistance, affection and the necessities of life. The ECE resolution by the Court sets the standard of proof the relocating party will certainly have to reach in order to acquire the asked for adjustment of custody. If the Court identifies that the ECE will not transform as a result of giving the moving party’s motion, after that the standard of proof is a preponderance of the proof (just a bit greater than 50%) that the adjustment of custody would remain in the child’s best interests. If the ECE will certainly transform as a result of the motion, after that the standard of proof is clear and convincing evidence (just a little bit less than the criminal requirement of beyond a reasonable doubt and substantially higher than preponderance of the evidence) that the modification would be in the child’s best interests.

Best Interests of the Child Standard.

If a change of circumstances has been shown, and the Court has made its determination regarding established custodial environment, then, no matter the standard of proof, the Court will consider the best interests of the minor child. Many litigants assume that the more poor things they can claim about the other parent, the more probable they are to win. However, that is often not true. Actually, the Courts usually 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. Sometimes, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will certainly commonly begin an inquiry regarding whether the aggressive parent is stating unfavorable features of the other party in front of the child. If the Court thinks that is occurring, that can back fire, and cause the parent seeking the adjustment to actually lose parenting time or possibly custody of the child where they had started attempting to obtain more. The Court is not curious about the back and forth between parents. They should focus on the twelve best interest factors set forth in the Child Custody Act when making their determination regarding just how to make a decision a custody motion. An additional usual misconception is that the aspects are a straightforward mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have expressly denied this kind of mathematical computation, and rather, have actually reviewed the complex interplay of the factors and the weight that Courts should provide to each one.

Bottom Line.

Custody motions are complicated. The majority of litigants are ill equipped to handle them without legal support. Whether you desire to file a motion, or if you are defending one, knowledgeable legal counsel is very important. Family law lawyers comprehend the complexities of these motions and what it takes to be successful in filing one. If you are thinking about submitting such a motion for a change of custody, parenting time, or any one of the sub-issues that develop from legal custody disagreements, your best choice is to speak with a seasoned family law attorney that can help you make the very best decision for your scenarios.