Child Custody Motions – Requirements and Pitfalls

Many individuals who get divorced, whether they have an attorney or not, think that as soon as the divorce judgment is entered, the case is over. If you don't have children, lot of times that is true, however in family law, absolutely nothing is forever. Lots of Judiciaries won't tell you that, and several lawyers that practice family law will not suggest customers concerning the truth that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, together with a list of other potential problems, are all reviewable by a Court and can change, if one party can verify to the Court that a modification is required. Besides child and spousal support, one of the most common post-judgment motion for adjustment of a judgment in family law cases involves custody of a child or multiple children. When these motions are submitted by unrepresented individuals, or by legal representatives that are not aware of family law, they are frequently unjustifiable or aren't actually requesting an adjustment in custody, yet instead, are looking for to enhance or decrease one party's parenting time.

What is Child Custody?

While this may feel like a basic or foolish inquiry, it implies something very specific in Michigan law, and is commonly misunderstood by both litigants and attorneys that practice in this area. In Michigan, the term "custody" is used as the colloquial for what family lawyers called "legal custody." The term "legal custody" in its easiest iteration means, who gets to make major 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. Usually, the Courts defer to a joint legal custody model, which allows both parents to have input in these decisions, and require that both moms and dads go over those concerns and agree before a decision is made. Frequently, what we call legal custody in Michigan is not what individuals think of first when they discuss or consider child custody. Most people think of who physically has the children with them and for what quantity of time. Colloquially, this form of custody is known as "physical custody." In Michigan, while lots of Courts acknowledge motions for changes to physical custody, in Michigan, the term "physical custody" is not normally identified as the proper terminology to make use of for this principle. Instead, the Judiciaries and most lawyers that practice in this area, speak about "parenting time," when figuring out just how much time each parent should have with the minor children.

Evaluating Adjustments 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 change custody, good lawyers will see to it to find out precisely what it is the customer wants to do. Occasionally, a motion to raise or reduce parenting time is better, and sometimes, is a lot easier to confirm. In some cases, a party may just intend to ask the Court to choose on a legal custody problem where the moms and dads can not agree, even though they might generally agree concerning other choices. Some instances would be a change of school districts (change of schools motion), or a motion for one parent to move more than one hundred miles from the child's current county of residence (change of domicile motion). A lot of those sub-categories of change of custody motions have certain and different needs that have to be shown to the Court in order for a party to be successful. Nevertheless, when a parent does in fact intend to change 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 proof provided at a hearing.

Custody Hearings Call For Process and Patience.

Telling the Court that the other party misbehaves and will not agree with you about anything is not going to be enough to modify legal custody, even if that is true. The other party will just state you are at fault and the Court will certainly have no way to decide who is really the bad actor. In those scenarios, the Court just shakes its finger at both parties and says "get along and identify a method 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 by which custody motions should be presented and argued, which an experienced family law lawyer can provide aid in doing. In all custody motions, the party that desires an adjustment has to show that that there has actually been a "change in circumstances" that has occurred since the last custody order was entered by the Court. The modification can't be a regular life modification (puberty, changing from middle to high school, getting dental braces), but should be substantial adjustment in the life of the child that has an effect on their on a daily basis life. Because each situation is distinct, litigants should speak with counsel regarding their circumstance prior to establishing whether the adjustment that parent is affirming meets the legal needs. If you can reveal an adjustment in scenarios, then the Court needs to determine 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 decision by the Court sets the standard of proof the moving party will certainly have to reach in order to acquire the requested modification of custody. If the Court determines that the ECE will not alter as a result of granting 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 change of custody would certainly remain 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 standard of beyond a reasonable doubt and significantly greater than prevalence of the evidence) 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 regarding established custodial environment, after that, no matter the standard of proof, the Court will consider the best interests of the minor child. Many litigants think that the more bad things they can state concerning the other parent, the more probable they are to win. Nevertheless, that is frequently not true. As a matter of fact, the Courts typically 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. Frequently, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will often start an inquiry as to whether or not the hostile parent is stating adverse features of the other party in front of the child. If the Court thinks that is happening, that can back fire, and cause the parent looking for the change to actually lose parenting time or possibly custody of the child where they had started out attempting to get extra. The Court is not thinking about the back and forth between moms and dads. They must focus on the twelve best interest factors set forth in the Child Custody Act when making their decision concerning how to choose a custody motion. Another typical misconception 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 actually specifically rejected this type of mathematical calculation, and instead, have actually gone over the complicated interaction of the factors and the weight that Courts should provide to each one.

Bottom Line.

Custody motions are complicated. Many litigants are ill equipped to handle them without legal support. Whether you want to file a motion, or if you are defending one, skilled legal guidance is essential. Family law lawyers comprehend the intricacies of these motions and what it takes to be effective in filing one. If you are thinking of submitting such a motion for a change of custody, parenting time, or any of the sub-issues that occur from legal custody disputes, your best choice is to talk to a skilled family law attorney that can help you make the best choice for your situations.

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