Child Custody Motions – Requirements and Pitfalls

Lots of people who get divorced, whether they have a lawyer or not, think that when the divorce judgment is entered, the case is over. If you do not have children, sometimes that is true, however in family law, absolutely nothing is forever. Numerous Judiciaries will not tell you that, and numerous attorneys who exercise family law will not encourage clients about the fact that custody, parenting time, child support, and failures to comply with the terms of a judgment of divorce, along with a list of other potential problems, are all reviewable by a Court and can change, if one party can verify to the Court that a modification is needed. Apart from child and spousal support, one of 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 attorneys who are not acquainted with family law, they are usually unjustifiable or aren't really asking for a modification in custody, but rather, are looking for to raise or decrease one party's parenting time.

What is Child Custody?

While this may look like a straightforward or dumb concern, it suggests something very specific in Michigan law, and is frequently misinterpreted by both litigants and attorneys that exercise in this field. In Michigan, the term "custody" is used as the colloquial for what family attorneys referred to as "legal custody." The term "legal custody" in its simplest iteration means, who gets to make major choices for the child, such as where they most likely 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. Usually, the Courts defer to a joint legal custody model, which permits both parents to have input in these choices, and require that both parents review those issues and agree before a decision is made. Frequently, what we call legal custody in Michigan is not what individuals think about first when they talk about or think of child custody. Many folks think of who physically has the children with them and for what quantity of time. Colloquially, this form of custody is called "physical custody." In Michigan, while numerous Courts identify motions for modifications to physical custody, in Michigan, the term "physical custody" is not normally identified as the proper terminology to make use of for this principle. Rather, the Courts and most legal representatives who exercise in this area, speak about "parenting time," when figuring out how much time each parent should have with the minor children.

Evaluating Changes in Child Custody.

First, litigants need to recognize what they are asking the Court to do. When a parent wants to make a motion to alter custody, good legal representatives will ensure to learn specifically what it is the client wants to do. Sometimes, a motion to raise or decrease parenting time is better suited, and sometimes, is a lot easier to verify. Occasionally, a party may just intend to ask the Court to choose on a legal custody concern where the parents can not agree, despite the fact that they might usually agree concerning other decisions. Some instances 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). Much of those sub-categories of change of custody motions have details 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 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, via proof presented at a hearing.

Custody Hearings Require Process and Patience.

Informing the Court that the other party is bad and will not agree with you concerning anything is not going to be enough to change legal custody, even if that holds true. The other party will just state you are at fault and the Court will certainly have no way to decide who is actually the bad actor. In those situations, the Court simply shakes its finger at both parties and says "get along and discover a way to make things work." In cases where one parent really is the troublemaker, that result is very frustrating. Rather, there is a process and procedure by which custody motions should be presented and argued, which a seasoned family law attorney can provide support in doing. In all custody motions, the party that wants a modification has to show that that there has actually been a "change in circumstances" that has actually taken place since the last custody order was entered by the Court. The modification can't be an ordinary life adjustment (puberty, changing from middle to high school, getting dental braces), but should be substantial adjustment in the life of the child that has an influence on their every day life. Due to the fact that each scenario is unique, litigants should speak with counsel about their situation prior to identifying whether the change that parent is alleging satisfies the legal requirements. If you can reveal a modification in situations, then the Court must 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, guidance, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the relocating party will certainly have to reach in order to acquire the requested modification of custody. If the Court figures out that the ECE will not transform as a result of giving the moving party's motion, then the standard of proof is a preponderance of the evidence (just a little bit greater than 50%) that the adjustment of custody would be 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 proof (just a little bit less than the criminal criterion of beyond a reasonable doubt and considerably more than preponderance of the evidence) that the change 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 relating to established custodial environment, then, regardless of the standard of proof, the Court will certainly think about the best interests of the minor child. Lots of litigants assume that the more negative things they can state regarding the other parent, the more probable they are to win. Nevertheless, that is often not true. Actually, the Courts normally pay little attention to the feelings of the parties for each other. Instead, they are focused on what is best for the child and the child's well-being. Sometimes, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will usually begin an inquiry as to whether or not the hostile parent is claiming adverse things about 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 modification to actually lose parenting time or possibly custody of the child where they had actually started attempting to acquire more. The Court is not interested in the back and forth between moms and dads. They must focus on the twelve best interest factors set forth in the Child Custody Act when making their resolution about just how to choose a custody motion. Another typical misunderstanding is that the variables are an easy 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 calculation, 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. A lot of litigants are ill equipped to manage them without legal aid. Whether you want to submit a motion, or if you are defending one, experienced legal advice is very important. Family law lawyers recognize the complexities 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 one of the sub-issues that emerge from legal custody conflicts, your best choice is to talk to a seasoned family law lawyer that can help you make the most effective decision for your circumstances.

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