Child Custody Motions – Requirements and Pitfalls

Lots of people that get divorced, whether they have an attorney or not, think that once the divorce judgment is entered, the case is over. If you don't have children, many times that is true, but in family law, absolutely nothing is for life. Many Courts will not tell you that, and lots of lawyers who practice family law will not suggest customers regarding the fact that custody, parenting time, child support, and failures to follow 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 verify to the Court that a modification is necessary. Besides child and spousal support, one of the most typical post-judgment motion for adjustment of a judgment in family law cases involves custody of a child or multiple children. When these motions are submitted by unrepresented individuals, or by attorneys that are not aware of family law, they are commonly unjustifiable or aren't truly requesting a modification in custody, yet rather, are looking for to increase or lower one party's parenting time.

What is Child Custody?

While this may seem like an easy or foolish concern, it suggests something very specific in Michigan law, and is commonly 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 most basic iteration means, who 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. Usually, the Courts accept a joint legal custody model, which permits both moms and dads to have input in these decisions, and require that both moms and dads review those issues and agree before a decision is made. Usually, what we call legal custody in Michigan is not what people think of first when they discuss or think about child custody. The majority of people think about who physically has the children with them and for what quantity of time. Colloquially, this form of custody is called "physical custody." In Michigan, while lots of Courts recognize motions for changes to physical custody, in Michigan, the term "physical custody" is not normally acknowledged as the appropriate terminology to make use of for this concept. Instead, the Judiciaries and most attorneys that exercise in this area, talk about "parenting time," when finding out just 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 wishes to make a motion to alter custody, good legal representatives will certainly see to it to find out specifically what it is the client intends to do. Sometimes, a motion to raise or decrease parenting time is better suited, and in some cases, is much easier to confirm. Often, a party might only intend to ask the Court to choose on a legal custody issue where the parents can not agree, even though they might normally agree concerning other decisions. 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 existing county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have particular and various needs that should be proven to the Court in order for a party to be successful. Nonetheless, when a parent does in fact want to alter 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, inevitably, via evidence presented at a hearing.

Custody Hearings Need Process and Patience.

Informing the Court that the other party misbehaves and will not agree with you about anything is not going to be enough to alter legal custody, even if that holds true. The other party will simply state you are at fault and the Court will have no way to determine who is actually the bad actor. In those conditions, the Court just 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 very discouraging. Rather, there is a process and procedure through which custody motions should be presented and argued, which a knowledgeable family law attorney can give assistance in doing. In all custody motions, the party that desires an adjustment 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 adjustment can't be a regular life modification (puberty, changing from middle to high school, getting braces), but must be significant adjustment in the life of the child that has an influence on their every day life. Since each circumstance is special, litigants should speak to counsel concerning their scenario before figuring out whether the adjustment that parent is declaring meets the legal needs. If you can reveal a change in scenarios, then the Court must 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 moving party will need to reach in order to get the asked for change of custody. If the Court figures out that the ECE will not change as a result of giving the relocating party's motion, then the standard of proof is a prevalence of the evidence (just a bit greater than 50%) that the adjustment of custody would be in the child's best interests. If the ECE will certainly 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 requirement of beyond a reasonable doubt and significantly more than prevalence of the evidence) that the change would be 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 resolution concerning established custodial environment, after that, despite the standard of proof, the Court will think about the best interests of the minor child. Many litigants believe that the more negative things they can say about the other parent, the more probable they are to win. Nevertheless, that is usually not true. Actually, the Courts normally pay little attention to the feelings of the parties for each other. Rather, they are concentrated 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 consider that with suspicion, and will certainly commonly start an inquiry regarding whether the aggressive parent is claiming negative things about the other party in front of the child. If the Court believes that is occurring, that can back fire, and cause the parent seeking the adjustment to actually lose parenting time or possibly custody of the child where they had actually started trying to acquire extra. The Court is not thinking about the back and forth between moms and dads. They need to focus on the twelve best interest factors set forth in the Child Custody Act when making their determination concerning how to decide a custody motion. One more typical mistaken belief is that the aspects are a straightforward 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 kind of mathematical computation, and instead, have actually talked about the complex interplay of the factors and the weight that Courts should provide to each one.

Bottom Line.

Custody motions are complicated. The majority of litigants are ill equipped to manage them without legal help. Whether you want to submit a motion, or if you are defending one, knowledgeable legal advise is important. Family law attorneys comprehend the intricacies of these motions and what it takes to be successful in submitting one. If you are thinking of submitting such a motion for a change of custody, parenting time, or any of the sub-issues that arise from legal custody conflicts, your best choice is to speak with a knowledgeable family law attorney who can help you make the best decision for your conditions.