Child Custody Motions – Requirements and Pitfalls

Many people who get separated, whether they have an attorney or otherwise, believe that when the divorce judgment is entered, the case is over. If you do not have children, many times that holds true, however in family law, absolutely nothing is for life. Several Judiciaries won't tell you that, and several attorneys that practice family law won't suggest customers concerning the reality that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, together with a list of other possible issues, are all reviewable by a Court and can change, if one party can confirm to the Court that an adjustment is necessary. Besides child and spousal support, one of the most common post-judgment motion for modification of a judgment in family law cases involves custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by lawyers who are not familiar with family law, they are typically unworthy or aren't really requesting a modification in custody, however rather, are seeking to boost or reduce one party's parenting time.

What is Child Custody?

While this might look like a straightforward or stupid inquiry, it means something very specific in Michigan law, and is often misinterpreted by both litigants and lawyers who practice in this area. In Michigan, the term "custody" is used as the colloquial for what family attorneys referred to as "legal custody." The term "legal custody" in its easiest iteration means, that gets to make major decisions 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. Typically, the Courts accept a joint legal custody model, which allows both parents to have input in these decisions, and require that both moms and dads review those concerns and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what people think about first when they discuss or think about child custody. Many people consider who physically has the children with them and for what quantity of time. Informally, this kind of custody is known as "physical custody." In Michigan, while several Courts acknowledge motions for adjustments to physical custody, in Michigan, the term "physical custody" is not typically identified as the proper terminology to make use of for this concept. Instead, the Courts and most attorneys who practice in this area, discuss "parenting time," when finding out how much time each parent should have with the minor children.

Evaluating Modifications in Child Custody.

Initially, litigants need to recognize what they are asking the Court to do. When a parent intends to make a motion to alter custody, good lawyers will certainly make certain to figure out exactly what it is the customer wants to do. In some cases, a motion to boost or decrease parenting time is better, and in many cases, is much easier to confirm. In some cases, a party might just want to ask the Court to choose on a legal custody concern where the parents can not agree, although they may typically agree about other choices. Some examples 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 specific and different demands that have to be shown to the Court in order for a party to be successful. Nonetheless, when a parent does in fact wish to transform 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, through evidence presented at a hearing.

Custody Hearings Need Process and Patience.

Telling the Court that the other party misbehaves and will not agree with you regarding anything is not going to be enough to alter 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 choose who is truly the bad actor. In those scenarios, the Court merely shakes its finger at both parties and says "get along and find a means to make things work." In cases where one parent really is the bad actor, that result is extremely discouraging. Rather, there is a process and procedure through which custody motions should be presented and argued, which a knowledgeable family law attorney can supply assistance in doing. In all custody motions, the party that desires a change needs to show that that there has been a "change in circumstances" that has occurred since the last custody order was entered by the Court. The adjustment can't be an average life change (puberty, changing from middle to high school, getting braces), but have to be substantial adjustment in the life of the child that has an influence on their daily life. Since each scenario is unique, litigants should talk with counsel regarding their scenario prior to establishing whether the change that parent is alleging fulfills the legal needs. If you can show a modification in conditions, then 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 determination by the Court sets the standard of proof the moving party will certainly have to reach in order to acquire the asked for change of custody. If the Court determines that the ECE will not change 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 more than 50%) that the modification of custody would certainly remain in the child's best interests. If the ECE will transform as a result of the motion, after that the standard of proof is clear and convincing proof (simply a bit less than the criminal standard of beyond a reasonable doubt and substantially more than preponderance 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 shown, and the Court has actually made its resolution relating to established custodial environment, after that, no matter the standard of proof, the Court will consider the best interests of the minor child. Many litigants believe that the more bad things they can claim concerning the other parent, the more probable they are to win. However, that is commonly not true. Actually, the Courts usually 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. Oftentimes, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will consider that with suspicion, and will typically start an inquiry regarding whether or not the hostile parent is stating unfavorable 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 modification to actually lose parenting time or possibly custody of the child where they had started out attempting to acquire more. The Court is not interested in the back and forth between parents. They need to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their decision about how to make a decision a custody motion. One more common mistaken belief is that the elements are a basic 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 estimation, and rather, have actually discussed the complicated interplay of the factors and the weight that Courts should offer to each one.

Bottom Line.

Custody motions are complicated. A lot of litigants are ill equipped to handle them without legal assistance. Whether you desire to submit a motion, or if you are defending one, skilled legal advice is very important. Family law lawyers recognize the complexities of these motions and what it takes to be effective in submitting one. If you are considering filing such a motion for a change of custody, parenting time, or any of the sub-issues that develop from legal custody disagreements, your best bet is to speak with a knowledgeable family law attorney who can help you make the most effective choice for your circumstances.