Child Custody Motions – Requirements and Pitfalls

Many individuals that get divorced, whether they have an attorney or not, think that as soon as the divorce judgment is entered, the case is over. If you do not have children, many times that is true, but in family law, nothing is forever. Many Courts will not tell you that, and numerous attorneys that exercise family law won’t recommend clients regarding the reality that custody, parenting time, child support, and failures to follow the terms of a judgment of divorce, together with a list of other potential concerns, are all reviewable by a Court and can change, if one party can verify to the Court that a change is needed. Aside from child and spousal support, the most usual post-judgment motion for modification of a judgment in family law cases entails custody of a child or multiple children. When these motions are filed by unrepresented persons, or by legal representatives who are not knowledgeable about family law, they are usually unjustifiable or aren’t really requesting an adjustment in custody, but instead, are seeking to boost or reduce one party’s parenting time.

What is Child Custody?

While this might feel like a simple or dumb question, it implies something very specific in Michigan law, and is typically misconstrued by both litigants and lawyers that practice in this field. 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 significant 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 moms and dads to have input in these choices, and require that both moms and dads discuss those problems and agree before a choice is made. Typically, what we call legal custody in Michigan is not what people think of initially when they talk about or think about child custody. Most people think of who physically has the children with them and for what quantity of time. Informally, this kind of custody is called “physical custody.” In Michigan, while several Courts acknowledge motions for modifications to physical custody, in Michigan, the term “physical custody” is not typically recognized as the appropriate terminology to make use of for this concept. Rather, the Judiciaries and most lawyers that exercise in this area, talk about “parenting time,” when determining just how much time each parent should have with the minor children.

Evaluating Adjustments in child custody.

First, litigants need to recognize what they are asking the Court to do. When a parent intends to make a motion to transform custody, good attorneys will certainly ensure to learn precisely what it is the customer intends to do. Occasionally, a motion to boost or reduce parenting time is better suited, and in some cases, is a lot easier to prove. Occasionally, a party might only wish to ask the Court to choose on a legal custody issue where the parents can not agree, even though they might usually agree concerning other choices. Some instances 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 present county of residence (change of domicile motion). Much of those sub-categories of change of custody motions have particular and different demands that should be verified to the Court in order for a party to be successful. However, 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, inevitably, via evidence presented at a hearing.

Custody Hearings Call For Process and Patience.

Informing the Court that the other party is bad and won’t agree with you regarding anything is not going to be enough to modify legal custody, even if that is true. The other party will merely claim you are at fault and the Court will have no way to determine that is really the bad actor. In those scenarios, the Court just shakes its finger at both parties and says “get along and discover a way to make things work.” In cases where one parent really is the bad actor, that result is extremely discouraging. Instead, there is a process and procedure by which custody motions should be presented and argued, which a knowledgeable family law lawyer can provide support in doing. In all custody motions, the party that desires 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 need to be considerable modification in the life of the child that has an impact on their each day life. Since each situation is unique, litigants should speak to counsel concerning their situation prior to establishing whether the change that parent is declaring meets the legal needs. If you can show an adjustment in conditions, then the Court should 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, advice, affection and the necessities of life. The ECE decision by the Court establishes the standard of proof the relocating party will have 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 granting the moving party’s motion, after that the standard of proof is a preponderance of the proof (simply a bit greater than 50%) that the change of custody would certainly remain in the child’s best interests. If the ECE will change as a result of the motion, after that the standard of proof is clear and convincing evidence (just a bit less than the criminal criterion of past a reasonable doubt and substantially 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 actually been revealed, and the Court has made its determination concerning established custodial environment, then, no matter the standard of proof, the Court will certainly consider the best interests of the minor child. Several litigants think that the more negative things they can state regarding the other parent, the more likely they are to win. Nonetheless, that is usually not true. In fact, the Courts normally 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. Oftentimes, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly look upon that with suspicion, and will certainly often start an inquiry as to whether or not the hostile parent is saying adverse aspects of the other party in front of the child. If the Court believes that is occurring, that can back fire, and cause the parent looking for the change to actually lose parenting time or potentially custody of the child where they had actually started out attempting to acquire more. The Court is not curious about the back and forth between moms and dads. They need to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their resolution about exactly how to make a decision a custody motion. One more usual misconception is that the elements 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 denied this type of mathematical calculation, and rather, have discussed the complicated 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 handle them without legal support. Whether you wish to submit a motion, or if you are defending one, skilled legal advice is important. Family law lawyers recognize the intricacies of these motions and what it takes to be successful in submitting one. If you are thinking about submitting such a motion for a change of custody, parenting time, or any of the sub-issues that develop from legal custody disagreements, your best choice is to seek advice from a knowledgeable family law lawyer who can help you make the best decision for your circumstances.

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