Child Custody Motions – Requirements and Pitfalls

Many individuals who get divorced, whether they have a lawyer or not, believe that when the divorce judgment is entered, the case is over. If you do not have children, many times that holds true, but in family law, absolutely nothing is for life. Many Courts will not tell you that, and numerous lawyers that exercise family law won't suggest customers regarding the truth that custody, parenting time, child support, and failures to adhere to the terms of a judgment of divorce, in addition to a list of other potential problems, are all reviewable by a Court and can change, if one party can prove to the Court that an adjustment is required. Apart from child and spousal support, the most common 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 legal representatives who are not acquainted with family law, they are typically unmerited or aren't truly requesting a modification in custody, but rather, are looking for to raise or lower one party's parenting time.

What is Child Custody?

While this might feel like a simple or silly concern, it indicates something very specific in Michigan law, and is commonly misconstrued by both litigants and lawyers 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 significant choices 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. Generally, the Courts accept a joint legal custody model, which permits both parents to have input in these decisions, and require that both parents talk about those problems and agree before a decision is made. Frequently, what we call legal custody in Michigan is not what people consider initially when they discuss or consider child custody. The majority of people consider who physically has the children with them and for what quantity of time. Colloquially, this kind of custody is known as "physical custody." In Michigan, while lots of Courts acknowledge motions for modifications to physical custody, in Michigan, the term "physical custody" is not normally acknowledged as the proper terminology to utilize for this concept. Instead, the Courts and most attorneys who exercise 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.

First, litigants need to know what they are asking the Court to do. When a parent intends to make a motion to alter custody, good attorneys will see to it to learn exactly what it is the client wishes to do. Sometimes, a motion to enhance or reduce parenting time is better, and in some cases, is much easier to show. Occasionally, a party may only want to ask the Court to decide on a legal custody problem where the parents can not agree, despite the fact that they might typically agree concerning other choices. Some examples 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 existing county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have particular and different needs that must be verified to the Court in order for a party to be successful. Nevertheless, when a parent does in fact intend 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, inevitably, through evidence provided at a hearing.

Custody Hearings Need Process and Patience.

Telling the Court that the other party is bad and won't agree with you concerning anything is not going to be enough to modify legal custody, even if that holds true. The other party will simply claim you are at fault and the Court will certainly have no way to decide who is really the bad actor. In those circumstances, the Court merely shakes its finger at both parties and says "get along and discover a method to make things work." In cases where one parent really is the troublemaker, that result is extremely aggravating. Instead, there is a process and procedure by which custody motions should be presented and argued, which a knowledgeable family law attorney can supply aid in doing. In all custody motions, the party that desires a change needs to show 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 change can't be a normal life change (puberty, changing from middle to high school, getting dental braces), but have to be substantial adjustment in the life of the child that has an effect on their every day life. Due to the fact that each scenario is special, litigants should talk to counsel about their scenario before establishing whether the change that parent is affirming satisfies the legal demands. If you can reveal an adjustment in scenarios, then the Court has to 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, assistance, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the relocating party will need to reach in order to obtain the requested adjustment of custody. If the Court figures out that the ECE will not alter as a result of giving the moving party's motion, after that the standard of proof is a prevalence of the proof (simply a bit greater than 50%) that the adjustment of custody would certainly be in the child's best interests. If the ECE will alter as a result of the motion, after that the standard of proof is clear and convincing proof (simply a bit less than the criminal standard of past a reasonable doubt and substantially more than prevalence of the evidence) that the modification would be in the child's best interests.

Best Interests of the Child Standard.

If a change of circumstances has actually been shown, and the Court has made its resolution regarding established custodial environment, then, no matter the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Numerous litigants believe that the more bad things they can state regarding the other parent, the more likely they are to win. However, that is usually not true. Actually, the Courts generally pay little attention to the feelings of the parties for each other. Rather, they are concentrated on what is best for the child and the child's well-being. Oftentimes, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will consider that with suspicion, and will typically begin an inquiry regarding whether the aggressive parent is claiming negative things about the other party in front of the child. If the Court believes that is occurring, 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 begun trying to obtain extra. The Court is not thinking about the back and forth between parents. They need to focus on the twelve best interest factors set forth in the Child Custody Act when making their resolution regarding just how to make a decision a custody motion. An additional common mistaken belief is that the aspects are a straightforward 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 type of mathematical computation, and rather, have discussed the complicated interaction 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 manage them without legal aid. Whether you desire to file a motion, or if you are defending one, knowledgeable legal advice is essential. Family law lawyers understand the intricacies 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 option is to seek advice from an experienced family law attorney who can help you make the best choice for your conditions.