Child Custody Motions – Requirements and Pitfalls

Lots of people who get separated, whether they have a lawyer or otherwise, think that when the divorce judgment is entered, the case is over. If you do not have children, often times that is true, yet in family law, nothing is for life. Lots of Courts won't tell you that, and many lawyers who practice family law will not encourage clients regarding the reality that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, in addition to a list of other prospective problems, are all reviewable by a Court and can change, if one party can verify to the Court that a modification is essential. Aside from child and spousal support, the most typical post-judgment motion for alteration 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 who are not familiar with family law, they are typically gratuitous 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 might seem like an easy or stupid inquiry, it implies something very specific in Michigan law, and is usually misinterpreted 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 simplest iteration means, that gets to make major 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 allows both moms and dads to have input in these decisions, and require that both parents go over those issues and agree before a choice is made. Usually, what we call legal custody in Michigan is not what people think of first when they talk about or think about child custody. Most folks think about who physically has the children with them and for what amount of time. Informally, this type of custody is referred to as "physical custody." In Michigan, while numerous Courts recognize motions for modifications to physical custody, in Michigan, the term "physical custody" is not generally identified as the appropriate terminology to make use of for this concept. Instead, the Courts and most attorneys who practice in this area, talk about "parenting time," when finding out how much time each parent should have with the minor children.

Evaluating Adjustments in Child Custody.

Initially, litigants need to understand what they are asking the Court to do. When a parent intends to make a motion to transform custody, good lawyers will certainly make certain to discover specifically what it is the customer intends to do. Sometimes, a motion to enhance or lower parenting time is better suited, and in many cases, is a lot easier to prove. Often, a party may only wish to ask the Court to make a decision on a legal custody concern where the moms and dads can not agree, although they may normally agree about other decisions. Some instances would be a change of school districts (change of schools motion), or a motion for one parent to relocate more 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 specific and different demands that must 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 should show the Court both in their motion, and, ultimately, with proof presented at a hearing.

Custody Hearings Call For Process and Patience.

Informing the Court that the other party misbehaves and won't agree with you concerning anything is not going to be enough to change legal custody, even if that is true. The other party will simply say you are at fault and the Court will have no way to decide that is really the bad actor. In those conditions, the Court just shakes its finger at both parties and says "get along and find a method to make things work." In cases where one parent actually is the troublemaker, that result is really irritating. Instead, there is a process and procedure through which custody motions should be presented and argued, which an experienced family law lawyer can give help 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 change can't be a common life change (puberty, changing from middle to high school, getting braces), but need to be substantial modification in the life of the child that has an influence on their each day life. Due to the fact that each situation is distinct, litigants should talk with counsel about their circumstance prior to establishing whether the change that parent is affirming meets the legal needs. If you can show a modification in circumstances, then the Court needs to 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, 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 asked for change of custody. If the Court identifies that the ECE will not transform as a result of providing the moving party's motion, then the standard of proof is a preponderance of the proof (simply a little bit greater than 50%) that the change of custody would certainly remain in the child's best interests. If the ECE will transform 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 substantially higher than prevalence of the evidence) that the change would certainly 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 concerning established custodial environment, after that, despite the standard of proof, the Court will certainly consider the best interests of the minor child. Many litigants believe that the more poor things they can state about the other parent, the more likely they are to win. Nonetheless, that is typically not true. Actually, the Courts generally 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. Often, 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 certainly frequently start an inquiry regarding whether or not the aggressive parent is claiming 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 change to actually lose parenting time or possibly custody of the child where they had actually begun trying to acquire 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 decision concerning just how to choose a custody motion. One more usual mistaken belief is that the variables are an easy mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have actually expressly declined this type of mathematical estimation, and instead, have gone over the intricate interplay 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 help. Whether you desire to submit a motion, or if you are defending one, experienced legal counsel is very important. 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 one of the sub-issues that emerge from legal custody disputes, your best option is to consult with a skilled family law attorney that can help you make the most effective choice for your situations.