Child Custody Motions – Requirements and Pitfalls

Lots of people who get separated, whether they have an attorney or otherwise, think that as soon as the divorce judgment is entered, the case is over. If you do not have children, many times that holds true, however in family law, nothing is forever. Numerous Courts won't tell you that, and several attorneys who exercise family law will not suggest clients regarding the truth that custody, parenting time, child support, and failures to comply with the terms of a judgment of divorce, along 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 an adjustment is required. Other than child and spousal support, one of 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 submitted by unrepresented persons, or by legal representatives that are not knowledgeable about family law, they are often unjustifiable or aren't really requesting a modification in custody, however instead, are seeking to increase or lower one party's parenting time.

What is Child Custody?

While this might feel like a basic or silly question, it implies something very specific in Michigan law, and is commonly misinterpreted by both litigants and attorneys who practice in this area. In Michigan, the term "custody" is used as the colloquial for what family attorneys called "legal custody." The term "legal custody" in its simplest iteration means, that gets to make significant choices 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. Usually, the Courts defer to a joint legal custody model, which allows both parents to have input in these decisions, and require that both parents talk about those issues and agree before a choice is made. Usually, what we call legal custody in Michigan is not what people consider initially when they talk about or consider child custody. Most people consider 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 lots of Courts acknowledge motions for changes to physical custody, in Michigan, the term "physical custody" is not usually identified as the ideal terminology to use for this principle. Instead, the Judiciaries and most legal representatives that exercise in this area, speak 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 understand what they are asking the Court to do. When a parent wants to make a motion to change custody, good attorneys will certainly make certain to discover exactly what it is the customer wants to do. In some cases, a motion to raise or reduce parenting time is more appropriate, and in many cases, is much easier to verify. Sometimes, a party may only intend to ask the Court to choose on a legal custody problem where the parents can not agree, even though they may usually agree concerning other decisions. 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). Many of those sub-categories of change of custody motions have specific and different requirements that need to be shown to the Court in order for a party to be successful. Nonetheless, when a parent does in fact wish to change legal custody of a child, there is a set of legal procedures that a party must show the Court both in their motion, and, inevitably, through evidence provided at a hearing.

Custody Hearings Call For Process and Patience.

Informing the Court that the other party misbehaves and won't agree with you about anything is not going to be enough to change legal custody, even if that holds true. The other party will just state you are at fault and the Court will certainly have no way to choose that is actually the bad actor. In those situations, the Court simply shakes its finger at both parties and says "get along and find a way to make things work." In cases where one parent really is the troublemaker, that result is really frustrating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which a seasoned family law attorney can provide assistance in doing. In all custody motions, the party that wants a modification has to show that that there has been a "change in circumstances" that has occurred since the last custody order was entered by the Court. The modification can not be a common life change (puberty, changing from middle to high school, getting dental braces), but need to be significant adjustment in the life of the child that has an effect on their everyday life. Due to the fact that each situation is unique, litigants should talk to counsel about their circumstance before establishing whether the change that parent is declaring satisfies the legal demands. If you can show an adjustment in circumstances, after that the Court should 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 establishes the standard of proof the moving party will need to reach in order to get the requested adjustment of custody. If the Court figures out that the ECE will not transform as a result of giving the moving party's motion, after that the standard of proof is a prevalence of the proof (just a bit more than 50%) that the modification of custody would remain in the child's best interests. If the ECE will certainly change as a result of the motion, then the standard of proof is clear and convincing proof (just a little bit less than the criminal criterion of beyond a reasonable doubt and substantially higher than prevalence of the evidence) that the adjustment would certainly remain in the child's best interests.

Best Interests of the Child Standard.

If a change of circumstances has been shown, and the Court has actually made its decision relating to established custodial environment, after that, regardless of the standard of proof, the Court will take into consideration the best interests of the minor child. Lots of litigants think that the more bad things they can claim about the other parent, the more probable they are to win. Nonetheless, that is commonly not true. In fact, the Courts normally pay little attention to the feelings of the parties for each other. Instead, they are concentrated on what is best for the child and the child's well-being. Often, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will look upon that with suspicion, and will certainly often start an inquiry regarding whether the hostile parent is claiming adverse aspects of the other party in front of the child. If the Court thinks that is taking place, that can back fire, and cause the parent looking for the change to actually lose parenting time or possibly custody of the child where they had actually begun trying to obtain extra. The Court is not curious about the back and forth between parents. They have to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their resolution concerning just how to decide a custody motion. An additional typical mistaken belief is that the elements are a basic mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have actually expressly rejected this kind of mathematical computation, and instead, have actually talked about the complicated interplay of the factors and the weight that Courts should provide to each one.

Bottom Line.

Custody motions are complicated. Most litigants are ill equipped to manage them without legal support. Whether you want to submit a motion, or if you are defending one, experienced legal guidance is important. Family law attorneys understand the complexities of these motions and what it takes to be effective in filing 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 occur from legal custody disagreements, your best bet is to consult with an experienced family law attorney who can help you make the most effective choice for your conditions.

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