Child Custody Motions – Requirements and Pitfalls

Many individuals that get divorced, whether they have an attorney or otherwise, think that once the divorce judgment is entered, the case is over. If you don't have children, many times that is true, but in family law, nothing is forever. Many Judiciaries won't tell you that, and several lawyers that exercise family law will not recommend customers about the reality that custody, parenting time, child support, and failures to abide by 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 confirm to the Court that a change is needed. Other than child and spousal support, one of the most common post-judgment motion for modification of a judgment in family law cases includes custody of a child or multiple children. When these motions are submitted by unrepresented persons, or by attorneys that are not familiar with family law, they are commonly gratuitous or aren't truly asking for a modification in custody, however rather, are looking for to enhance or decrease one party's parenting time.

What is Child Custody?

While this may seem like an easy or foolish question, it indicates something very specific in Michigan law, and is frequently misinterpreted by both litigants and lawyers that exercise in this field. In Michigan, the term "custody" is used as the colloquial for what family lawyers referred to as "legal custody." The term "legal custody" in its simplest iteration means, that gets to make major 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. Usually, the Courts accept a joint legal custody model, which permits both moms and dads to have input in these decisions, and require that both parents review those problems and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what people think of initially when they talk about or think about child custody. Many people think of who physically has the children with them and for what quantity of time. Colloquially, this type of custody is known as "physical custody." In Michigan, while lots of Courts identify motions for modifications to physical custody, in Michigan, the term "physical custody" is not typically identified as the suitable terminology to use for this principle. Instead, the Judiciaries and most attorneys who practice in this area, talk 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 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 learn precisely what it is the client intends to do. Often, a motion to boost or reduce parenting time is better suited, and sometimes, is a lot easier to show. In some cases, a party might just wish to ask the Court to choose on a legal custody concern where the moms and dads can not agree, despite the fact that they may typically 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). A number of those sub-categories of change of custody motions have specific and various requirements that have to be verified to the Court in order for a party to be successful. Nevertheless, 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, through evidence presented at a hearing.

Custody Hearings Need Process and Patience.

Informing the Court that the other party is bad and won't agree with you about anything is not going to be enough to alter 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 choose who is truly the bad actor. In those situations, the Court just 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 bad actor, that result is really irritating. Instead, there is a process and procedure through which custody motions should be presented and argued, which a knowledgeable family law lawyer can give aid in doing. In all custody motions, the party that desires a modification needs to reveal that that there has actually been a "change in circumstances" that has actually happened since the last custody order was entered by the Court. The adjustment can not be an average life modification (puberty, changing from middle to high school, getting dental braces), but must be significant modification in the life of the child that has an influence on their daily life. Since each situation is special, litigants should speak with counsel regarding their circumstance prior to establishing whether the modification that parent is alleging fulfills the legal requirements. If you can reveal a change in situations, after that the Court should establish 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, support, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the moving party will certainly need to reach in order to acquire the requested adjustment of custody. If the Court figures out that the ECE will not change as a result of granting the moving party's motion, then the standard of proof is a preponderance of the proof (just a bit greater than 50%) that the change of custody would be in the child's best interests. If the ECE will certainly alter as a result of the motion, then the standard of proof is clear and convincing proof (just a bit less than the criminal criterion of beyond a reasonable doubt and considerably higher than preponderance of the evidence) that the adjustment would certainly be in the child's best interests.

Best Interests of the Child Standard.

If a change of circumstances has been shown, and the Court has actually made its resolution regarding established custodial environment, after that, regardless of the standard of proof, the Court will consider the best interests of the minor child. Many litigants assume that the more poor things they can say regarding the other parent, the most likely they are to win. Nonetheless, that is often 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. Frequently, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will consider that with suspicion, and will typically begin an inquiry as to whether or not the aggressive parent is saying adverse things about 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 trying to get extra. The Court is not interested in the back and forth between parents. They have to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their resolution concerning just how to choose a custody motion. One more usual misunderstanding is that the elements are a basic 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 sort of mathematical estimation, and rather, have actually gone over the intricate interplay of the factors and the weight that Courts should offer to each one.

Bottom Line.

Custody motions are complicated. Many litigants are ill equipped to handle them without legal assistance. Whether you desire to submit a motion, or if you are defending one, knowledgeable legal advice is very important. Family law lawyers recognize the complexities of these motions and what it takes to be successful in filing one. If you are thinking of filing such a motion for a change of custody, parenting time, or any of the sub-issues that develop from legal custody conflicts, your best bet is to speak with a seasoned family law lawyer that can help you make the best choice for your circumstances.