Child Custody Motions – Requirements and Pitfalls

Many people who 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 holds true, however in family law, absolutely nothing is forever. Numerous Judiciaries will not tell you that, and several lawyers that practice family law won't advise clients about the truth 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 essential. Besides child and spousal support, the most typical post-judgment motion for alteration 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 aware of family law, they are commonly unmerited or aren't truly requesting a change in custody, however instead, are seeking to boost or reduce one party's parenting time.

What is Child Custody?

While this might look like an easy or stupid question, it indicates something very specific in Michigan law, and is usually misconstrued by both litigants and attorneys who exercise in this area. In Michigan, the term "custody" is used as the colloquial for what family legal representatives called "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 treatment, or where does the child go to church and in what religious denomination should they be raised. Normally, the Courts accept a joint legal custody model, which allows both parents to have input in these choices, and require that both moms and dads discuss those concerns and agree before a choice is made. Commonly, what we call legal custody in Michigan is not what individuals think of first when they talk about or think about child custody. A lot of individuals think of who physically has the children with them and for what quantity of time. Informally, this kind of custody is referred to as "physical custody." In Michigan, while several Courts acknowledge motions for modifications to physical custody, in Michigan, the term "physical custody" is not generally recognized as the ideal terminology to use for this concept. Rather, the Judiciaries and most legal representatives who exercise in this area, discuss "parenting time," when figuring out just 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 wishes to make a motion to transform custody, good attorneys will ensure to find out specifically what it is the customer intends to do. Sometimes, a motion to raise or decrease parenting time is more appropriate, and sometimes, is a lot easier to prove. Occasionally, a party might only intend to ask the Court to decide on a legal custody concern where the moms and dads can not agree, although they may typically agree about other choices. 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 existing county of residence (change of domicile motion). Much of those sub-categories of change of custody motions have specific and different requirements that must be verified to the Court in order for a party to be successful. However, when a parent does in fact want to transform legal custody of a child, there is a set of legal procedures that a party have to show the Court both in their motion, and, eventually, with 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 regarding anything is not going to be enough to alter legal custody, even if that is true. The other party will merely state you are at fault and the Court will certainly have no way to determine that is truly the bad actor. In those situations, 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 truly is the troublemaker, that result is very aggravating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which a skilled family law lawyer can offer help in doing. In all custody motions, the party that desires a modification has to show that that there has been a "change in circumstances" that has occurred since the last custody order was entered by the Court. The adjustment can't be a common life modification (puberty, changing from middle to high school, getting braces), but should be considerable change in the life of the child that has an effect on their each day life. Since each situation is one-of-a-kind, litigants should talk to counsel regarding their scenario before establishing whether the change that parent is declaring satisfies the legal requirements. If you can show a modification in circumstances, then the Court must 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 decision by the Court sets the standard of proof the moving party will certainly have to reach in order to obtain the requested modification of custody. If the Court identifies that the ECE will not alter as a result of approving the relocating party's motion, then the standard of proof is a prevalence of the evidence (just a little bit more than 50%) that the change of custody would certainly remain in the child's best interests. If the ECE will change as a result of the motion, after that the standard of proof is clear and convincing evidence (simply a little bit less than the criminal criterion of beyond a reasonable doubt and significantly more than preponderance of the proof) that the modification would remain 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 decision concerning 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 say concerning the other parent, the most likely they are to win. However, that is often not true. In fact, the Courts usually 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. Usually, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will look upon that with suspicion, and will frequently begin an inquiry regarding whether the aggressive parent is saying adverse features of the other party in front of the child. If the Court believes that is taking place, that can back fire, and cause the parent looking for the modification 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 thinking about 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 determination about how to determine a custody motion. One more usual mistaken belief is that the elements 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 denied this type of mathematical estimation, and instead, have actually talked about the complex interaction of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. The majority of litigants are ill equipped to handle them without legal support. Whether you want to submit a motion, or if you are defending one, seasoned legal advise is important. Family law lawyers recognize the complexities of these motions and what it takes to be effective 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 occur from legal custody disagreements, your best bet is to seek advice from a seasoned family law attorney that can help you make the very best decision for your scenarios.