Child Custody Motions – Requirements and Pitfalls

Many individuals that get separated, whether they have a lawyer or otherwise, believe that once the divorce judgment is entered, the case is over. If you don't have children, sometimes that is true, yet in family law, nothing is forever. Several Judiciaries won't tell you that, and lots of attorneys who practice family law won't encourage clients concerning the truth that custody, parenting time, child support, and failures to comply with the terms of a judgment of divorce, in addition to a list of other potential concerns, are all reviewable by a Court and can change, if one party can show to the Court that a modification is necessary. Apart from child and spousal support, the most typical post-judgment motion for alteration 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 lawyers who are not knowledgeable about family law, they are commonly unjustifiable or aren't really requesting a modification in custody, but instead, are seeking to increase or lower one party's parenting time.

What is Child Custody?

While this may seem like an easy or stupid concern, it indicates something very specific in Michigan law, and is typically misunderstood by both litigants and attorneys who practice in this area. In Michigan, the term "custody" is used as the colloquial for what family attorneys know as "legal custody." The term "legal custody" in its easiest iteration means, who gets to make major choices 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. Typically, the Courts accept a joint legal custody model, which allows both moms and dads to have input in these choices, and require that both parents go over those concerns and agree before a choice is made. Usually, what we call legal custody in Michigan is not what people think of first when they speak about or think of child custody. The majority of individuals think about 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 several Courts identify motions for changes to physical custody, in Michigan, the term "physical custody" is not generally recognized as the suitable terminology to utilize for this concept. Rather, the Courts and most lawyers who exercise in this area, speak about "parenting time," when determining just 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 wishes to make a motion to change custody, good attorneys will ensure to figure out exactly what it is the customer intends to do. In some cases, a motion to increase or decrease parenting time is better suited, and in some cases, is much easier to prove. In some cases, a party may just wish to ask the Court to decide on a legal custody problem where the parents can not agree, although they might normally agree regarding other decisions. Some examples 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 existing county of residence (change of domicile motion). Much of those sub-categories of change of custody motions have specific and various needs that have to be confirmed to the Court in order for a party to be successful. Nonetheless, 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, inevitably, with proof provided at a hearing.

Custody Hearings Require Process and Patience.

Telling the Court that the other party misbehaves and won't 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 say you are at fault and the Court will have no way to decide that is actually the bad actor. In those situations, the Court merely shakes its finger at both parties and says "get along and discover a means to make things work." In cases where one parent actually is the troublemaker, that result is really frustrating. Instead, there is a process and procedure by which custody motions should be presented and argued, which an experienced family law attorney can provide assistance in doing. In all custody motions, the party that desires an adjustment has to show that that there has been a "change in circumstances" that has actually happened since the last custody order was entered by the Court. The modification can't be a common life change (puberty, changing from middle to high school, getting dental braces), but have to be significant adjustment in the life of the child that has an effect on their everyday life. Since each circumstance is special, litigants should talk to counsel regarding their circumstance prior to establishing whether the adjustment that parent is alleging fulfills the legal demands. If you can reveal a modification in scenarios, after that the Court should establish 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 resolution by the Court establishes the standard of proof the relocating party will need to reach in order to get the asked for modification of custody. If the Court determines that the ECE will not alter as a result of providing the moving party's motion, then the standard of proof is a preponderance of the proof (simply a bit more than 50%) that the modification of custody would be in the child's best interests. If the ECE will change as a result of the motion, then the standard of proof is clear and convincing evidence (just a bit less than the criminal criterion of past a reasonable doubt and significantly greater than prevalence of the proof) that the change would certainly be in the child's best interests.

Best Interests of the Child Standard.

If a change of circumstances has been shown, and the Court has made its determination relating to established custodial environment, after that, regardless of the standard of proof, the Court will certainly consider the best interests of the minor child. Numerous litigants assume that the more negative things they can state regarding the other parent, the more likely they are to win. Nonetheless, that is commonly not true. Actually, the Courts usually 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. Usually, 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 commonly begin an inquiry as to whether the aggressive 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 adjustment to actually lose parenting time or potentially custody of the child where they had started attempting to obtain extra. The Court is not thinking about the back and forth between moms and dads. They should concentrate on the twelve best interest factors set forth in the Child Custody Act when making their determination concerning how to choose a custody motion. Another common misunderstanding is that the aspects 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 rejected this sort of mathematical computation, and instead, have gone over the complex 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 assistance. Whether you wish to file a motion, or if you are defending one, experienced legal advice is necessary. Family law lawyers understand 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 arise from legal custody disagreements, your best choice is to seek advice from a seasoned family law attorney who can help you make the most effective choice for your scenarios.