Child Custody Motions – Requirements and Pitfalls

Many individuals who get separated, whether they have an attorney or otherwise, believe that once 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 for life. Many Courts won't tell you that, and several attorneys that exercise family law will not suggest customers regarding 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 possible issues, are all reviewable by a Court and can change, if one party can show to the Court that a change is needed. Aside from child and spousal support, the most common 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 lawyers who are not familiar with family law, they are frequently gratuitous or aren't really asking for a modification in custody, however instead, are seeking to raise or reduce one party's parenting time.

What is Child Custody?

While this might feel like a basic or foolish concern, it implies something very specific in Michigan law, and is usually misinterpreted by both litigants and lawyers who exercise 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 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. Generally, the Courts defer to a joint legal custody model, which allows both parents to have input in these choices, and require that both moms and dads discuss those problems and agree before a choice is made. Usually, what we call legal custody in Michigan is not what individuals think about first when they talk about or think of child custody. Most individuals consider who physically has the children with them and for what quantity of time. Colloquially, this type of custody is referred to as "physical custody." In Michigan, while numerous Courts identify motions for adjustments to physical custody, in Michigan, the term "physical custody" is not usually recognized as the proper terminology to make use of for this principle. Instead, the Courts and most legal representatives who exercise in this area, talk about "parenting time," when figuring out 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 wishes to make a motion to alter custody, good lawyers will make certain to figure out specifically what it is the customer intends to do. Sometimes, a motion to boost or lower parenting time is more appropriate, and sometimes, is a lot easier to confirm. Sometimes, a party may only want to ask the Court to choose on a legal custody problem where the parents can not agree, even though they may typically agree regarding 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 details and different requirements that should be confirmed to the Court in order for a party to be successful. However, when a parent does in fact want to change 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 presented at a hearing.

Custody Hearings Need Process and Patience.

Informing 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 holds true. The other party will just state you are at fault and the Court will have no way to choose that is truly the bad actor. In those conditions, 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 aggravating. Rather, there is a process and procedure through which custody motions should be presented and argued, which a skilled family law lawyer can provide help in doing. In all custody motions, the party that wants a change 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 adjustment can not be an average life modification (puberty, changing from middle to high school, getting dental braces), but need to be substantial adjustment in the life of the child that has an effect on their every day life. Since each circumstance is special, litigants should speak with counsel regarding their circumstance prior to identifying whether the change that parent is alleging satisfies the legal needs. If you can reveal a modification in circumstances, then the Court needs to 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, guidance, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the moving party will certainly need to reach in order to acquire the requested adjustment of custody. If the Court determines that the ECE will not transform as a result of approving the moving party's motion, after that 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 transform as a result of the motion, after that the standard of proof is clear and convincing evidence (simply a little bit less than the criminal standard of past a reasonable doubt and substantially greater than prevalence of the proof) that the adjustment would certainly remain 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 actually made its decision regarding established custodial environment, then, regardless of the standard of proof, the Court will consider the best interests of the minor child. Numerous litigants think that the more bad things they can claim regarding the other parent, the more likely they are to win. Nevertheless, that is usually not true. As a matter of fact, the Courts generally 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. Frequently, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will certainly typically begin an inquiry regarding whether the aggressive parent is saying negative aspects of the other party in front of the child. If the Court believes that is taking place, 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 started attempting to get extra. The Court is not interested in 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 decision regarding how to make a decision a custody motion. Another usual misconception is that the elements are an easy mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have expressly denied this kind of mathematical computation, and rather, have talked about the complex interaction of the factors and the weight that Courts should offer to each one.

Bottom Line.

Custody motions are complicated. The majority of litigants are ill equipped to handle them without legal aid. Whether you desire to submit a motion, or if you are defending one, skilled legal guidance is necessary. Family law attorneys understand the intricacies of these motions and what it takes to be effective in filing one. If you are considering filing such a motion for a change of custody, parenting time, or any of the sub-issues that occur from legal custody disputes, your best choice is to talk to a seasoned family law lawyer that can help you make the best decision for your conditions.