Child Custody Motions – Requirements and Pitfalls

Lots of people that get divorced, whether they have a lawyer 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 is true, yet in family law, nothing is forever. Numerous Courts won't tell you that, and lots of attorneys that exercise family law won't advise customers about the fact that custody, parenting time, child support, and failures to adhere to 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 confirm to the Court that a modification is necessary. Aside from child and spousal support, the most usual post-judgment motion for modification of a judgment in family law cases entails custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by legal representatives who are not acquainted with family law, they are often unmerited or aren't really requesting an adjustment in custody, yet instead, are seeking to enhance or lower one party's parenting time.

What is Child Custody?

While this may seem like a straightforward or foolish inquiry, it means something very specific in Michigan law, and is frequently misunderstood by both litigants and attorneys who exercise in this field. In Michigan, the term "custody" is used as the colloquial for what family legal representatives referred to as "legal custody." The term "legal custody" in its most basic iteration means, who gets to make significant 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. Normally, the Courts defer to a joint legal custody model, which allows both moms and dads to have input in these decisions, and require that both moms and dads discuss those issues and agree before a choice is made. Commonly, what we call legal custody in Michigan is not what people think of first when they speak about or think of child custody. A lot of folks think about who physically has the children with them and for what amount of time. Informally, this kind of custody is referred to as "physical custody." In Michigan, while numerous Courts recognize motions for adjustments to physical custody, in Michigan, the term "physical custody" is not normally identified as the suitable terminology to make use of for this concept. Rather, the Judiciaries and most lawyers who exercise in this area, talk about "parenting time," when determining just how much time each parent should have with the minor children.

Evaluating Adjustments in Child Custody.

Initially, litigants need to recognize what they are asking the Court to do. When a parent intends to make a motion to transform custody, good lawyers will certainly see to it to learn specifically what it is the customer wishes to do. Often, a motion to increase or decrease parenting time is more appropriate, and in many cases, is a lot easier to prove. Sometimes, a party might only wish to ask the Court to make a decision on a legal custody issue where the moms and dads can not agree, although they might generally agree regarding 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). Most of those sub-categories of change of custody motions have certain and different requirements that should be verified to the Court in order for a party to be successful. Nonetheless, 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, ultimately, via evidence provided at a hearing.

Custody Hearings Require 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 claim you are at fault and the Court will have no way to choose who is truly the bad actor. In those scenarios, the Court simply shakes its finger at both parties and says "get along and find a way to make things work." In cases where one parent actually is the troublemaker, that result is extremely irritating. Instead, there is a process and procedure through which custody motions should be presented and argued, which a seasoned family law lawyer can give aid in doing. In all custody motions, the party that desires 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 change can not be an ordinary life change (puberty, changing from middle to high school, getting dental braces), but have to be significant modification in the life of the child that has an impact on their every day life. Because each circumstance is one-of-a-kind, litigants should talk with counsel about their scenario prior to identifying whether the modification that parent is alleging satisfies the legal requirements. If you can reveal a modification in situations, then the Court needs to figure out 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, guidance, affection and the necessities of life. The ECE determination by the Court sets the standard of proof the relocating party will certainly have to reach in order to get the requested adjustment of custody. If the Court determines that the ECE will not change as a result of giving the relocating party's motion, after that the standard of proof is a preponderance of the evidence (just a little bit more than 50%) that the change of custody would be in the child's best interests. If the ECE will certainly transform as a result of the motion, then the standard of proof is clear and convincing proof (simply a little bit less than the criminal criterion of beyond a reasonable doubt and considerably more than preponderance of the proof) that the adjustment would certainly remain 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 pertaining to established custodial environment, then, no matter the standard of proof, the Court will take into consideration the best interests of the minor child. Numerous litigants believe that the more bad things they can say regarding the other parent, the more likely they are to win. Nevertheless, that is usually not true. As a matter of fact, 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. Usually, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will consider that with suspicion, and will certainly typically start an inquiry regarding whether the hostile parent is stating adverse aspects of the other party in front of the child. If the Court believes 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 actually begun trying to get extra. The Court is not interested in the back and forth between moms and dads. They need to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their decision concerning how to decide a custody motion. An additional usual mistaken belief is that the variables are a simple mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have specifically declined this sort of mathematical computation, and rather, have actually reviewed the complex interaction of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. A lot of litigants are ill equipped to handle them without legal support. Whether you desire to submit a motion, or if you are defending one, experienced legal counsel is necessary. Family law attorneys recognize the intricacies of these motions and what it takes to be effective 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 arise from legal custody disputes, your best option is to speak with an experienced family law lawyer who can help you make the very best decision for your circumstances.