Child Custody Motions – Requirements and Pitfalls

Lots of people that get separated, whether they have a lawyer or otherwise, believe that when the divorce judgment is entered, the case is over. If you don't have children, lot of times that holds true, but in family law, nothing is for life. Several Judiciaries will not tell you that, and numerous lawyers that exercise family law will not recommend customers concerning the truth that custody, parenting time, child support, and failures to adhere to 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 change is required. Other than child and spousal support, one of the most usual post-judgment motion for modification of a judgment in family law cases entails custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by attorneys who are not knowledgeable about family law, they are often unworthy or aren't truly requesting a change in custody, yet instead, are looking for to increase or lower one party's parenting time.

What is Child Custody?

While this might feel like a basic or dumb question, it suggests something very specific in Michigan law, and is typically misinterpreted by both litigants and lawyers who exercise in this field. In Michigan, the term "custody" is used as the colloquial for what family attorneys called "legal custody." The term "legal custody" in its easiest iteration means, who gets to make major choices 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. Generally, the Courts defer to a joint legal custody model, which allows both parents to have input in these decisions, and require that both parents review those issues and agree before a decision is made. Usually, what we call legal custody in Michigan is not what individuals consider first when they speak about or think about child custody. Many folks think of who physically has the children with them and for what quantity of time. Informally, this type of custody is known as "physical custody." In Michigan, while numerous Courts recognize motions for modifications to physical custody, in Michigan, the term "physical custody" is not usually recognized as the proper terminology to make use of for this concept. Instead, the Courts and most lawyers that practice in this area, speak about "parenting time," when determining how much time each parent should have with the minor children.

Evaluating Adjustments in Child Custody.

Initially, litigants need to recognize what they are asking the Court to do. When a parent wants to make a motion to change custody, good attorneys will certainly make sure to learn specifically what it is the client wishes to do. Often, a motion to raise or decrease parenting time is better suited, and in many cases, is a lot easier to confirm. Often, a party might only want to ask the Court to make a decision on a legal custody concern where the parents can not agree, although they might 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 relocate greater than one hundred miles from the child's present county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have details and different demands that must be confirmed to the Court in order for a party to be successful. However, when a parent does in fact intend to transform legal custody of a child, there is a set of legal procedures that a party must show the Court both in their motion, and, ultimately, via proof provided at a hearing.

Custody Hearings Call For Process and Patience.

Telling the Court that the other party is bad and will not agree with you regarding 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 determine who is really the bad actor. In those conditions, the Court merely shakes its finger at both parties and says "get along and identify a way to make things work." In cases where one parent really is the bad actor, that result is really irritating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which an experienced family law lawyer can give aid in doing. In all custody motions, the party that wants a modification needs to show that that there has actually been a "change in circumstances" that has actually occurred since the last custody order was entered by the Court. The adjustment can't be a regular 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 impact on their every day life. Due to the fact that each circumstance is distinct, litigants should talk to counsel regarding their situation prior to identifying whether the adjustment that parent is affirming meets the legal needs. If you can show a modification in scenarios, then the Court needs 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, guidance, affection and the necessities of life. The ECE determination by the Court establishes the standard of proof the moving party will certainly have to reach in order to get the requested change of custody. If the Court figures out that the ECE will not change as a result of giving the relocating party's motion, then the standard of proof is a preponderance of the evidence (simply a little bit greater than 50%) that the modification of custody would certainly remain in the child's best interests. If the ECE will alter as a result of the motion, then the standard of proof is clear and convincing proof (just a little bit less than the criminal criterion of beyond a reasonable doubt and considerably greater than preponderance of the proof) that the modification would be 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 regarding established custodial environment, then, regardless of the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Several litigants believe that the more poor things they can say regarding the other parent, the most likely they are to win. Nonetheless, that is commonly 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 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 certainly look upon that with suspicion, and will frequently begin an inquiry as to whether or not the aggressive parent is stating negative aspects 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 change to actually lose parenting time or potentially custody of the child where they had started attempting to acquire more. The Court is not thinking about 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 about exactly how to determine a custody motion. Another common misconception is that the aspects are a simple mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have specifically denied this kind of mathematical computation, and rather, have reviewed the complicated interaction of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. A lot of litigants are ill equipped to handle them without legal help. Whether you wish to file a motion, or if you are defending one, skilled legal advice is important. Family law attorneys understand the complexities of these motions and what it takes to be successful 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 disputes, your best option is to seek advice from an experienced family law lawyer that can help you make the most effective choice for your situations.