Child Custody Motions – Requirements and Pitfalls

Lots of people who get separated, 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, lot of times that is true, however in family law, nothing is forever. Several Judiciaries won't tell you that, and several lawyers that practice family law won't recommend customers concerning the reality that custody, parenting time, child support, and failures to comply with 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 modification is needed. Other than child and spousal support, the most typical post-judgment motion for alteration of a judgment in family law cases involves custody of a child or multiple children. When these motions are filed by unrepresented persons, or by lawyers that are not acquainted with family law, they are typically unjustifiable or aren't actually asking for an adjustment in custody, but rather, are seeking to enhance or reduce one party's parenting time.

What is Child Custody?

While this might feel like a straightforward or silly question, it indicates 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 attorneys know as "legal custody." The term "legal custody" in its most basic iteration means, that gets to make major 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 accept a joint legal custody model, which permits both parents to have input in these decisions, and require that both parents review those concerns and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what individuals think about first when they talk about or consider child custody. A lot of people think of who physically has the children with them and for what amount of time. Informally, this form of custody is referred to as "physical custody." In Michigan, while many Courts recognize motions for adjustments to physical custody, in Michigan, the term "physical custody" is not generally identified as the suitable terminology to use for this concept. Rather, the Courts and most legal representatives that exercise in this area, discuss "parenting time," when identifying just how much time each parent should have with the minor children.

Evaluating Adjustments in Child Custody.

First, litigants need to understand what they are asking the Court to do. When a parent wishes to make a motion to alter custody, good legal representatives will ensure to figure out precisely what it is the customer wishes to do. In some cases, a motion to increase or lower parenting time is more appropriate, and in many cases, is a lot easier to verify. Sometimes, a party might just want to ask the Court to decide on a legal custody issue where the parents can not agree, although they might usually agree regarding other choices. 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 current county of residence (change of domicile motion). Many of those sub-categories of change of custody motions have particular and different requirements that have to be proven to the Court in order for a party to be successful. Nonetheless, when a parent does in fact wish to alter legal custody of a child, there is a set of legal procedures that a party should show the Court both in their motion, and, eventually, with evidence offered at a hearing.

Custody Hearings Need Process and Patience.

Informing the Court that the other party is bad and will not agree with you concerning anything is not going to be enough to modify legal custody, even if that is true. The other party will simply say you are at fault and the Court will certainly have no way to choose that is actually the bad actor. In those scenarios, the Court simply 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 frustrating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which a seasoned family law attorney can supply support in doing. In all custody motions, the party that desires a change needs to reveal that that there has been a "change in circumstances" that has actually happened since the last custody order was entered by the Court. The adjustment can't be a regular life change (puberty, changing from middle to high school, getting braces), but need to be significant modification in the life of the child that has an effect on their on a daily basis life. Since each circumstance is distinct, litigants should talk with counsel about their circumstance prior to identifying whether the change that parent is declaring fulfills the legal needs. If you can reveal a change in circumstances, after that the Court has to 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, support, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the relocating party will certainly need to reach in order to acquire the requested adjustment of custody. If the Court identifies that the ECE will not transform as a result of giving the relocating party's motion, then the standard of proof is a prevalence of the proof (simply a bit more than 50%) that the change of custody would remain 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 proof (just a little bit less than the criminal standard of beyond a reasonable doubt and significantly more than preponderance of the evidence) that the adjustment would remain 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 actually made its decision regarding established custodial environment, then, no matter the standard of proof, the Court will think about the best interests of the minor child. Several litigants think that the more poor things they can claim regarding the other parent, the more probable they are to win. However, that is typically not true. As a matter of fact, the Courts usually 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. Often, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will look upon that with suspicion, and will certainly typically start an inquiry as to whether or not the hostile parent is stating 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 looking for the modification to actually lose parenting time or possibly custody of the child where they had actually started trying to get extra. The Court is not curious 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 regarding just how to determine a custody motion. An additional usual mistaken belief is that the variables are a basic mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have expressly rejected this kind of mathematical computation, and instead, have discussed the intricate interaction 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 aid. Whether you wish to file a motion, or if you are defending one, skilled legal counsel is important. Family law lawyers understand the intricacies of these motions and what it takes to be successful in submitting one. If you are thinking about filing such a motion for a change of custody, parenting time, or any one of the sub-issues that emerge from legal custody disagreements, your best option is to speak with a skilled family law lawyer that can help you make the very best choice for your circumstances.