Child Custody Motions – Requirements and Pitfalls

Many individuals who get separated, whether they have an attorney 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, however in family law, absolutely nothing is for life. Many Judiciaries will not tell you that, and lots of lawyers that practice family law will not advise clients regarding the fact that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, together with a list of other prospective concerns, are all reviewable by a Court and can change, if one party can prove to the Court that a change is required. Apart from child and spousal support, the most usual post-judgment motion for modification 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 aware of family law, they are typically unworthy or aren't truly requesting a change in custody, but rather, are seeking to boost or decrease one party's parenting time.

What is Child Custody?

While this might feel like a basic or silly concern, it means something very specific in Michigan law, and is commonly misunderstood by both litigants and lawyers that practice in this field. In Michigan, the term "custody" is used as the colloquial for what family lawyers referred to as "legal custody." The term "legal custody" in its simplest iteration means, who gets to make major 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 defer to a joint legal custody model, which permits both parents to have input in these decisions, and require that both moms and dads discuss those problems and agree before a decision is made. Typically, what we call legal custody in Michigan is not what people think about initially when they discuss or consider child custody. Most folks consider who physically has the children with them and for what amount of time. Informally, this form of custody is known as "physical custody." In Michigan, while many Courts recognize motions for modifications to physical custody, in Michigan, the term "physical custody" is not typically identified as the proper terminology to utilize for this concept. Rather, the Courts and most attorneys that exercise in this area, speak about "parenting time," when figuring out just how much time each parent should have with the minor children.

Evaluating Adjustments in Child Custody.

Initially, litigants need to know what they are asking the Court to do. When a parent wants to make a motion to alter custody, good attorneys will certainly make sure to discover specifically what it is the customer intends to do. Occasionally, a motion to enhance or decrease parenting time is better suited, and sometimes, is much easier to confirm. Often, a party may just want to ask the Court to decide on a legal custody problem where the moms and dads can not agree, even though they may normally 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). Much of those sub-categories of change of custody motions have details and various demands that have to be proven to the Court in order for a party to be successful. Nevertheless, when a parent does in fact wish to alter 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, inevitably, with evidence offered at a hearing.

Custody Hearings Require 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 merely state you are at fault and the Court will certainly have no way to choose that is really the bad actor. In those conditions, the Court just shakes its finger at both parties and says "get along and discover a method to make things work." In cases where one parent truly is the bad actor, that result is extremely frustrating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which a skilled family law lawyer can supply support in doing. In all custody motions, the party that wants an adjustment has to show that that there has been a "change in circumstances" that has happened since the last custody order was entered by the Court. The modification can not be an ordinary life modification (puberty, changing from middle to high school, getting dental braces), but must be considerable modification in the life of the child that has an influence on their each day life. Due to the fact that each circumstance is unique, litigants should speak to counsel regarding their scenario before figuring out whether the modification that parent is affirming fulfills the legal demands. If you can reveal an adjustment in scenarios, after that the Court must figure out 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 decision by the Court establishes the standard of proof the relocating party will certainly need to reach in order to obtain the asked for change of custody. If the Court establishes 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 evidence (simply a little bit more than 50%) that the change of custody would certainly remain in the child's best interests. If the ECE will alter as a result of the motion, then the standard of proof is clear and convincing proof (just a little bit less than the criminal standard of past a reasonable doubt and significantly greater than preponderance of the proof) that the modification would certainly be in the child's best interests.

Best Interests of the Child Standard.

If a change of circumstances has actually been revealed, and the Court has made its resolution concerning established custodial environment, then, despite the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Several litigants believe that the more bad things they can state concerning the other parent, the most likely they are to win. However, that is typically not true. As a matter of fact, 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. Sometimes, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will look upon that with suspicion, and will certainly commonly start an inquiry regarding whether or not the hostile parent is saying unfavorable 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 seeking the change to actually lose parenting time or possibly custody of the child where they had started out attempting to get extra. The Court is not thinking about the back and forth between moms and dads. They must concentrate on the twelve best interest factors set forth in the Child Custody Act when making their decision about just how to determine a custody motion. One more usual misconception is that the factors 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 specifically declined this sort of mathematical calculation, and instead, have actually talked about the complicated interplay of the factors and the weight that Courts should offer to each one.

Bottom Line.

Custody motions are complicated. Many litigants are ill equipped to handle them without legal support. Whether you desire to submit a motion, or if you are defending one, skilled legal counsel is important. Family law attorneys recognize the complexities of these motions and what it takes to be successful in submitting one. If you are thinking of filing such a motion for a change of custody, parenting time, or any of the sub-issues that develop from legal custody conflicts, your best option is to consult with a knowledgeable family law attorney who can help you make the best decision for your conditions.

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