Child Custody Motions – Requirements and Pitfalls

Many people that 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, lot of times that is true, but in family law, nothing is forever. Lots of Courts will not tell you that, and numerous lawyers that exercise family law will not encourage customers about the fact 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 potential issues, are all reviewable by a Court and can change, if one party can verify to the Court that a change is essential. Besides child and spousal support, one of the most usual post-judgment motion for alteration of a judgment in family law cases includes custody of a child or multiple children. When these motions are submitted by unrepresented persons, or by attorneys who are not familiar with family law, they are frequently unworthy or aren't truly asking for a modification in custody, however rather, are seeking to increase or lower one party's parenting time.

What is Child Custody?

While this may look like an easy or foolish concern, it suggests something very specific in Michigan law, and is often misinterpreted by both litigants and attorneys that practice in this area. In Michigan, the term "custody" is used as the colloquial for what family legal representatives referred to as "legal custody." The term "legal custody" in its most basic iteration means, that gets to make significant 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. Normally, the Courts accept a joint legal custody model, which permits both parents to have input in these decisions, and require that both moms and dads talk about those issues and agree before a decision is made. Commonly, what we call legal custody in Michigan is not what people think of initially when they talk about or think of child custody. The majority of folks consider who physically has the children with them and for what amount of time. Informally, this kind of custody is referred to as "physical custody." In Michigan, while numerous Courts recognize motions for changes to physical custody, in Michigan, the term "physical custody" is not generally recognized as the ideal terminology to utilize for this concept. Instead, the Judiciaries and most legal representatives who practice in this area, talk about "parenting time," when finding out 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 change custody, good legal representatives will make sure to figure out exactly what it is the client wishes to do. In some cases, a motion to raise or reduce parenting time is better suited, and sometimes, is much easier to verify. Occasionally, a party may just want to ask the Court to make a decision on a legal custody concern where the moms and dads can not agree, even though 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 more than one hundred miles from the child's current county of residence (change of domicile motion). A number of those sub-categories of change of custody motions have particular and various needs that must be shown to the Court in order for a party to be successful. Nevertheless, when a parent does in fact wish to transform legal custody of a child, there is a set of legal procedures that a party have to show the Court both in their motion, and, eventually, through evidence 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 alter legal custody, even if that holds true. The other party will just claim you are at fault and the Court will have no way to decide that is really the bad actor. In those circumstances, the Court just shakes its finger at both parties and says "get along and identify a means to make things work." In cases where one parent actually is the troublemaker, that result is extremely discouraging. Rather, there is a process and procedure through which custody motions should be presented and argued, which a skilled family law lawyer can offer support in doing. In all custody motions, the party that wants an adjustment has to reveal that that there has been a "change in circumstances" that has happened since the last custody order was entered by the Court. The change can not be a common life adjustment (puberty, changing from middle to high school, getting braces), but should be significant change in the life of the child that has an impact on their on a daily basis life. Since each situation is unique, litigants should talk to counsel concerning their situation before figuring out whether the modification that parent is affirming meets the legal requirements. If you can show a change in scenarios, then the Court should 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 decision by the Court establishes the standard of proof the relocating party will certainly need to reach in order to acquire the requested change of custody. If the Court determines that the ECE will not transform as a result of approving the relocating party's motion, then the standard of proof is a prevalence of the proof (just a little bit more than 50%) that the adjustment of custody would be in the child's best interests. If the ECE will alter as a result of the motion, after that the standard of proof is clear and convincing proof (just a bit less than the criminal standard of beyond a reasonable doubt and significantly greater than prevalence of the evidence) that the change 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 made its decision relating to established custodial environment, after that, no matter the standard of proof, the Court will certainly think about the best interests of the minor child. Several litigants think that the more negative things they can claim about the other parent, the most likely they are to win. However, that is usually not true. Actually, the Courts normally 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 parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will certainly often start an inquiry as to whether or not the hostile parent is claiming negative features of the other party in front of the child. If the Court thinks that is taking place, that can back fire, and cause the parent looking for the change to actually lose parenting time or possibly custody of the child where they had actually started out attempting to obtain extra. The Court is not thinking about the back and forth between parents. They should concentrate on the twelve best interest factors set forth in the Child Custody Act when making their decision regarding how to make a decision a custody motion. One more common misunderstanding 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 actually expressly declined this type of mathematical calculation, and rather, have gone over the intricate interaction of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. The majority of litigants are ill equipped to manage them without legal aid. Whether you want to file a motion, or if you are defending one, knowledgeable legal counsel is very important. Family law lawyers understand the intricacies 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 develop from legal custody conflicts, your best bet is to talk to a seasoned family law lawyer who can help you make the very best decision for your scenarios.

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