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, lot of times that is true, but in family law, absolutely nothing is forever. Many Judiciaries won't tell you that, and several attorneys who practice family law won't advise clients concerning the truth that custody, parenting time, child support, and failures to follow the terms of a judgment of divorce, together with a list of other possible concerns, are all reviewable by a Court and can change, if one party can prove to the Court that an adjustment is needed. Aside from child and spousal support, one of the most usual post-judgment motion for modification of a judgment in family law cases includes custody of a child or multiple children. When these motions are filed by unrepresented persons, or by attorneys that are not knowledgeable about family law, they are usually unjustifiable or aren't actually requesting a change in custody, but rather, are looking for to increase or reduce one party's parenting time.

What is Child Custody?

While this may seem like a basic or silly concern, it suggests something very specific in Michigan law, and is commonly misinterpreted by both litigants and lawyers who exercise in this area. In Michigan, the term "custody" is used as the colloquial for what family attorneys called "legal custody." The term "legal custody" in its most basic 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 permits both parents to have input in these decisions, and require that both parents review those issues and agree before a decision is made. Typically, what we call legal custody in Michigan is not what people think about first when they talk about or consider child custody. A lot of individuals think about 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 several Courts identify motions for modifications to physical custody, in Michigan, the term "physical custody" is not generally recognized as the appropriate terminology to utilize for this principle. Rather, the Courts and most legal representatives who exercise in this area, discuss "parenting time," when identifying 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 wants to make a motion to change custody, good lawyers will certainly see to it to discover precisely what it is the client intends to do. In some cases, a motion to raise or reduce parenting time is better, and in some cases, is much easier to prove. Occasionally, a party might only intend to ask the Court to decide on a legal custody concern where the parents can not agree, although they might usually 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 current county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have particular and various demands that should be shown 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 need to show the Court both in their motion, and, ultimately, with evidence provided at a hearing.

Custody Hearings Need 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 merely say you are at fault and the Court will have no way to decide that is actually the bad actor. In those conditions, the Court just shakes its finger at both parties and says "get along and discover a method to make things work." In cases where one parent truly is the bad actor, that result is very irritating. Rather, there is a process and procedure through which custody motions should be presented and argued, which an experienced family law attorney can supply aid in doing. In all custody motions, the party that wants an adjustment 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't be a normal life modification (puberty, changing from middle to high school, getting dental braces), but should be considerable modification in the life of the child that has an impact on their each day life. Since each scenario is distinct, litigants should talk to counsel concerning their situation before figuring out whether the change that parent is alleging satisfies the legal demands. If you can reveal a change in situations, then the Court must 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, advice, affection and the necessities of life. The ECE determination by the Court sets the standard of proof the moving party will have to reach in order to get the asked for modification of custody. If the Court identifies that the ECE will not change as a result of giving the moving party's motion, after that the standard of proof is a prevalence of the evidence (simply a bit more than 50%) that the adjustment of custody would be in the child's best interests. If the ECE will certainly change as a result of the motion, then the standard of proof is clear and convincing evidence (just a little bit less than the criminal requirement of past a reasonable doubt and significantly higher than preponderance of the evidence) that the adjustment 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 actually made its decision relating to established custodial environment, after that, regardless of the standard of proof, the Court will consider the best interests of the minor child. Several litigants assume that the more bad things they can state concerning the other parent, the most likely they are to win. Nevertheless, that is usually not true. As a matter of fact, the Courts typically pay little attention to the feelings of the parties for each other. Instead, 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 look upon that with suspicion, and will often begin an inquiry regarding whether or not the hostile parent is saying negative features of the other party in front of the child. If the Court believes that is happening, 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 begun trying to acquire extra. 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 resolution concerning just how to make a decision a custody motion. One more usual false impression is that the elements are a simple mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have actually specifically denied this kind of mathematical computation, and rather, have actually reviewed the intricate interaction of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. Most litigants are ill equipped to handle them without legal support. Whether you desire to file a motion, or if you are defending one, seasoned legal advice is important. Family law attorneys recognize the intricacies of these motions and what it takes to be effective in submitting one. If you are considering 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 bet is to consult with a seasoned family law lawyer that can help you make the very best decision for your conditions.

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