Child Custody Motions – Requirements and Pitfalls

Lots of people who get separated, whether they have a lawyer or not, believe that when the divorce judgment is entered, the case is over. If you don't have children, sometimes that holds true, but in family law, absolutely nothing is for life. Lots of Judiciaries won't tell you that, and many attorneys that exercise family law will not advise clients regarding the reality that custody, parenting time, child support, and failures to comply with the terms of a judgment of divorce, in addition to a list of other possible problems, are all reviewable by a Court and can change, if one party can prove to the Court that an adjustment is required. Other than child and spousal support, the most typical post-judgment motion for modification of a judgment in family law cases entails custody of a child or multiple children. When these motions are submitted by unrepresented individuals, or by lawyers that are not familiar with family law, they are frequently gratuitous or aren't actually requesting an adjustment in custody, yet instead, are seeking to enhance or decrease one party's parenting time.

What is Child Custody?

While this might seem like a basic or foolish question, it means something very specific in Michigan law, and is typically misunderstood by both litigants and lawyers that practice in this field. In Michigan, the term "custody" is used as the colloquial for what family legal representatives called "legal custody." The term "legal custody" in its simplest iteration means, who gets to make significant decisions for the child, such as where they go 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. Generally, the Courts accept a joint legal custody model, which permits both parents to have input in these choices, and require that both moms and dads review those concerns and agree before a choice is made. Usually, what we call legal custody in Michigan is not what people think of first when they speak about or think about child custody. Many individuals consider who physically has the children with them and for what amount of time. Informally, this kind of custody is called "physical custody." In Michigan, while many Courts acknowledge motions for adjustments to physical custody, in Michigan, the term "physical custody" is not normally identified as the appropriate terminology to make use of for this idea. Instead, the Judiciaries and most legal representatives that exercise in this area, talk about "parenting time," when figuring out how much time each parent should have with the minor children.

Evaluating Changes 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 alter custody, good lawyers will see to it to find out specifically what it is the customer wants to do. Sometimes, a motion to enhance or decrease parenting time is better, and in many cases, is a lot easier to prove. Often, a party might only wish to ask the Court to decide on a legal custody problem where the moms and dads can not agree, although they may typically agree concerning 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 present county of residence (change of domicile motion). A lot of those sub-categories of change of custody motions have details and various needs that must be verified to the Court in order for a party to be successful. However, when a parent does in fact intend to transform legal custody of a child, there is a set of legal procedures that a party should show the Court both in their motion, and, ultimately, via proof provided at a hearing.

Custody Hearings Need 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 claim you are at fault and the Court will have no way to decide that is really the bad actor. In those scenarios, 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 truly is the troublemaker, that result is really irritating. Instead, there is a process and procedure through which custody motions should be presented and argued, which a seasoned family law lawyer can supply help in doing. In all custody motions, the party that wants an adjustment needs to reveal that that there has actually 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 normal life adjustment (puberty, changing from middle to high school, getting braces), but need to be substantial modification in the life of the child that has an impact on their on a daily basis life. Since each situation is one-of-a-kind, litigants should talk to counsel regarding their situation before determining whether the change that parent is alleging meets the legal requirements. If you can reveal a change in scenarios, then the Court needs to 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, assistance, affection and the necessities of life. The ECE determination by the Court sets the standard of proof the relocating party will need to reach in order to get the asked for adjustment of custody. If the Court figures out that the ECE will not alter as a result of providing the relocating party's motion, then the standard of proof is a preponderance of the proof (simply a little bit greater than 50%) that the adjustment of custody would be in the child's best interests. If the ECE will certainly alter as a result of the motion, then the standard of proof is clear and convincing evidence (just a bit less than the criminal criterion of past a reasonable doubt and considerably greater than prevalence of the proof) that the adjustment would remain in the child's best interests.

Best Interests of the Child Standard.

If a change of circumstances has been revealed, and the Court has actually made its determination pertaining to established custodial environment, then, regardless of the standard of proof, the Court will certainly consider the best interests of the minor child. Lots of litigants assume that the more poor things they can state concerning the other parent, the more probable they are to win. However, that is usually not true. In fact, the Courts generally pay little attention to the feelings of the parties for each other. Instead, they are focused 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 look upon that with suspicion, and will frequently start an inquiry regarding whether the hostile parent is stating negative aspects of the other party in front of the child. If the Court thinks that is happening, that can back fire, and cause the parent seeking the adjustment to actually lose parenting time or potentially custody of the child where they had actually started trying to get more. The Court is not interested in the back and forth between parents. They need to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their decision about how to make a decision a custody motion. An additional typical misconception is that the variables 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 sort of mathematical calculation, and rather, have discussed the intricate interplay of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. Most litigants are ill equipped to handle them without legal support. Whether you wish to file a motion, or if you are defending one, seasoned legal guidance is very important. Family law lawyers recognize the complexities of these motions and what it takes to be effective in filing one. If you are thinking of submitting such a motion for a change of custody, parenting time, or any of the sub-issues that occur from legal custody conflicts, your best option is to consult with an experienced family law lawyer who can help you make the very best decision for your scenarios.