Child Custody Motions – Requirements and Pitfalls

Lots of people who 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, many times that holds true, but in family law, absolutely nothing is forever. Several Courts will not tell you that, and lots of lawyers that practice family law won't encourage customers about the reality that custody, parenting time, child support, and failures to follow the terms of a judgment of divorce, along with a list of other possible issues, are all reviewable by a Court and can change, if one party can prove 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 includes custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by attorneys that are not knowledgeable about family law, they are typically unjustifiable or aren't actually asking for a modification in custody, however instead, are looking for to raise or decrease one party's parenting time.

What is Child Custody?

While this may look like a simple or dumb inquiry, it means something very specific in Michigan law, and is often misunderstood by both litigants and attorneys who exercise in this area. In Michigan, the term "custody" is used as the colloquial for what family legal representatives called "legal custody." The term "legal custody" in its easiest iteration means, who gets to make significant decisions for the child, such as where they most likely 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. Normally, the Courts accept a joint legal custody model, which allows both parents to have input in these choices, and require that both parents review those issues and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what people think about initially when they discuss or consider child custody. Many individuals think about who physically has the children with them and for what amount of time. Colloquially, this kind of custody is referred to as "physical custody." In Michigan, while many Courts recognize motions for changes to physical custody, in Michigan, the term "physical custody" is not typically identified as the suitable terminology to make use of for this principle. Rather, the Judiciaries and most legal representatives that practice in this area, talk about "parenting time," when determining just how much time each parent should have with the minor children.

Evaluating Changes 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 alter custody, good legal representatives will certainly see to it to discover precisely what it is the client wishes to do. Often, a motion to enhance or decrease parenting time is more appropriate, and sometimes, is much easier to show. Sometimes, a party may just want to ask the Court to decide on a legal custody issue where the parents can not agree, despite the fact that they might usually 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 greater than one hundred miles from the child's current county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have particular and different needs that should be proven to the Court in order for a party to be successful. Nevertheless, when a parent does in fact wish 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, eventually, via proof offered at a hearing.

Custody Hearings Call For Process and Patience.

Informing the Court that the other party is bad and will not agree with you concerning anything is not going to be enough to alter legal custody, even if that is true. The other party will merely claim you are at fault and the Court will certainly have no way to choose 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 really is the bad actor, that result is very aggravating. Instead, there is a process and procedure through which custody motions should be presented and argued, which an experienced family law attorney can give assistance in doing. In all custody motions, the party that desires a modification needs to reveal that that there has been a "change in circumstances" that has actually taken place since the last custody order was entered by the Court. The change can not be a normal life modification (puberty, changing from middle to high school, getting braces), but should be significant modification in the life of the child that has an effect on their everyday life. Due to the fact that each circumstance is special, litigants should talk with counsel about their circumstance before figuring out whether the modification that parent is affirming fulfills the legal needs. If you can show a change in conditions, 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, support, affection and the necessities of life. The ECE resolution by the Court establishes the standard of proof the relocating party will certainly need to reach in order to obtain the requested adjustment of custody. If the Court determines that the ECE will not change as a result of approving the relocating party's motion, then the standard of proof is a prevalence of the evidence (simply a bit more than 50%) that the change of custody would be 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 (simply a little bit less than the criminal standard of past a reasonable doubt and substantially more 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 been shown, and the Court has actually made its determination regarding established custodial environment, after that, regardless of the standard of proof, the Court will consider the best interests of the minor child. Several litigants think that the more negative things they can state about the other parent, the most likely they are to win. Nevertheless, that is commonly not true. As a matter of fact, the Courts normally pay little attention to the feelings of the parties for each other. Rather, they are focused on what is best for the child and the child's well-being. Frequently, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will look upon that with suspicion, and will certainly typically start an inquiry as to whether or not the hostile parent is claiming negative aspects of the other party in front of the child. If the Court thinks that is occurring, that can back fire, and cause the parent looking for the change to actually lose parenting time or potentially custody of the child where they had started attempting to get more. The Court is not thinking about the back and forth between moms and dads. They have to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their determination concerning exactly how to choose a custody motion. An additional usual misconception is that the factors 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 specifically denied this kind of mathematical computation, and instead, have actually reviewed the complex interaction of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. Many litigants are ill equipped to handle them without legal aid. Whether you desire to submit a motion, or if you are defending one, knowledgeable legal counsel is important. Family law lawyers understand the intricacies of these motions and what it takes to be effective in filing 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 conflicts, your best choice is to speak with an experienced family law lawyer who can help you make the most effective decision for your situations.