Child Custody Motions – Requirements and Pitfalls

Many individuals that get separated, whether they have a lawyer or not, think 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, but in family law, absolutely nothing is forever. Numerous Judiciaries will not tell you that, and many attorneys that exercise family law will not advise customers about the reality that custody, parenting time, child support, and failures to follow 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 show to the Court that a change is required. Besides child and spousal support, one of the most usual post-judgment motion for adjustment 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 legal representatives that are not familiar with family law, they are often unmerited or aren't actually asking for a change in custody, however rather, are seeking to raise or lower one party's parenting time.

What is Child Custody?

While this might seem like an easy or silly inquiry, it indicates something very specific in Michigan law, and is commonly misinterpreted by both litigants and attorneys who exercise in this field. In Michigan, the term "custody" is used as the colloquial for what family attorneys know as "legal custody." The term "legal custody" in its simplest iteration means, that gets to make significant decisions 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. Generally, the Courts accept a joint legal custody model, which allows both parents to have input in these decisions, and require that both parents discuss those issues and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what people think about first when they talk about or think of child custody. The majority of individuals think of who physically has the children with them and for what quantity of time. Informally, this form of custody is referred to as "physical custody." In Michigan, while lots of Courts identify motions for adjustments to physical custody, in Michigan, the term "physical custody" is not normally acknowledged as the appropriate terminology to utilize for this idea. Instead, the Courts and most legal representatives that practice in this area, discuss "parenting time," when identifying just how much time each parent should have with the minor children.

Evaluating Changes 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 change custody, good attorneys will make certain to learn exactly what it is the customer intends to do. In some cases, a motion to enhance or decrease parenting time is better, and in many cases, is a lot easier to verify. Occasionally, a party may only wish to ask the Court to make a decision on a legal custody issue where the parents can not agree, despite the fact that they may generally agree regarding other choices. Some instances 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). Many of those sub-categories of change of custody motions have specific and various needs that need to be confirmed to the Court in order for a party to be successful. Nevertheless, 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, inevitably, via evidence offered at a hearing.

Custody Hearings Need Process and Patience.

Telling the Court that the other party is bad 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 decide that is really the bad actor. In those situations, the Court just shakes its finger at both parties and says "get along and discover a way to make things work." In cases where one parent truly is the bad actor, that result is really frustrating. Instead, there is a process and procedure by which custody motions should be presented and argued, which a skilled family law attorney can supply support in doing. In all custody motions, the party that wants an adjustment needs to reveal 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 an ordinary life change (puberty, changing from middle to high school, getting braces), but should be substantial modification in the life of the child that has an influence on their every day life. Since each scenario is unique, litigants should talk with counsel about their circumstance prior to figuring out whether the adjustment that parent is affirming meets the legal demands. If you can reveal a change in circumstances, after that 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, 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 change of custody. If the Court identifies that the ECE will not transform as a result of approving the moving party's motion, then the standard of proof is a prevalence of the proof (simply 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, after that the standard of proof is clear and convincing evidence (simply a little bit less than the criminal standard of beyond a reasonable doubt and considerably higher 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 actually been revealed, and the Court has made its determination pertaining to established custodial environment, then, despite the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Several litigants assume that the more negative things they can claim concerning the other parent, the most likely they are to win. Nevertheless, 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 focused 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 consider that with suspicion, and will certainly usually begin an inquiry regarding whether or not the hostile parent is stating negative 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 potentially custody of the child where they had actually started out attempting to obtain extra. The Court is not thinking about the back and forth between parents. They must concentrate on the twelve best interest factors set forth in the Child Custody Act when making their determination concerning just how to decide a custody motion. One more typical false impression is that the variables are a straightforward mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have specifically declined this type of mathematical calculation, and instead, have reviewed the intricate 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 help. Whether you want to submit a motion, or if you are defending one, experienced legal guidance is essential. Family law attorneys recognize the complexities of these motions and what it takes to be effective in submitting one. If you are thinking of submitting such a motion for a change of custody, parenting time, or any of the sub-issues that emerge from legal custody conflicts, your best choice is to talk to a skilled family law attorney that can help you make the most effective decision for your situations.