Child Custody Motions – Requirements and Pitfalls

Many people who get separated, whether they have an attorney or not, believe that as soon as the divorce judgment is entered, the case is over. If you do not have children, lot of times that holds true, but in family law, absolutely nothing is forever. Several Judiciaries will not tell you that, and numerous attorneys that practice family law will not encourage clients concerning the fact that custody, parenting time, child support, and failures to follow 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 show to the Court that a modification is necessary. 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 filed by unrepresented persons, or by legal representatives that are not aware of family law, they are commonly unmerited or aren’t really asking for an adjustment in custody, yet instead, are seeking to raise or decrease one party’s parenting time.

What is Child Custody?

While this may feel like a simple or dumb concern, it implies something very specific in Michigan law, and is often misconstrued by both litigants and attorneys that practice in this field. In Michigan, the term “custody” is used as the colloquial for what family lawyers called “legal custody.” The term “legal custody” in its easiest iteration means, who gets to make major choices for the child, such as where they most likely 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 permits both moms and dads to have input in these choices, and require that both moms and dads talk about those concerns and agree before a decision is made. Often, what we call legal custody in Michigan is not what people think about first when they speak about or think about child custody. Most individuals think about who physically has the children with them and for what amount of time. Colloquially, this kind of custody is referred to as “physical custody.” In Michigan, while lots of Courts recognize motions for modifications to physical custody, in Michigan, the term “physical custody” is not usually recognized as the appropriate terminology to utilize for this concept. Instead, the Judiciaries and most legal representatives who practice in this area, speak about “parenting time,” when determining how much time each parent should have with the minor children.

Evaluating Modifications in Child Custody.

First, litigants need to know what they are asking the Court to do. When a parent intends to make a motion to transform custody, good attorneys will certainly see to it to learn precisely what it is the customer intends to do. In some cases, a motion to boost or decrease parenting time is better, and in some cases, is much easier to prove. In some cases, a party might just want to ask the Court to choose on a legal custody issue where the moms and dads can not agree, even though they may normally agree concerning other decisions. Some instances would be a change of school districts (change of schools motion), or a motion for one parent to move more than one hundred miles from the child’s existing county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have certain and various requirements that need to be shown to the Court in order for a party to be successful. Nonetheless, when a parent does in fact want to alter legal custody of a child, there is a set of legal procedures that a party need to show the Court both in their motion, and, inevitably, through evidence offered at a hearing.

Custody Hearings Call For Process and Patience.

Telling the Court that the other party misbehaves and won’t agree with you about anything is not going to be enough to alter legal custody, even if that holds true. The other party will merely say you are at fault and the Court will have no way to choose that is really the bad actor. In those circumstances, the Court simply shakes its finger at both parties and says “get along and discover a means to make things work.” In cases where one parent actually is the troublemaker, that result is extremely aggravating. Rather, there is a process and procedure by which 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 wants a modification needs to reveal that that there has actually been a “change in circumstances” that has occurred since the last custody order was entered by the Court. The adjustment can not be a normal life change (puberty, changing from middle to high school, getting dental braces), but should be significant change in the life of the child that has an influence on their each day life. Due to the fact that each scenario is one-of-a-kind, litigants should speak with counsel about their situation before identifying whether the modification that parent is alleging meets the legal requirements. If you can reveal a modification 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 determination by the Court sets the standard of proof the moving party will certainly need to reach in order to acquire the asked for modification of custody. If the Court identifies that the ECE will not change as a result of giving the relocating party’s motion, after that the standard of proof is a preponderance of the proof (simply a little bit more than 50%) that the change of custody would remain in the child’s best interests. If the ECE will alter as a result of the motion, then the standard of proof is clear and convincing proof (just a bit less than the criminal standard of past a reasonable doubt and substantially higher than prevalence of the proof) that the modification 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 decision concerning established custodial environment, then, no matter the standard of proof, the Court will take into consideration the best interests of the minor child. Many litigants assume that the more negative things they can say about the other parent, the most likely they are to win. Nevertheless, that is often not true. As a matter of fact, the Courts typically 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. Oftentimes, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will certainly frequently begin an inquiry as to whether or not the hostile parent is stating adverse features 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 change to actually lose parenting time or potentially custody of the child where they had started attempting to get more. The Court is not thinking about the back and forth between moms and dads. They have to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their resolution regarding just how to choose a custody motion. Another common misunderstanding is that the factors 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 denied this sort of mathematical computation, and instead, have actually talked about the complex interaction 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 aid. Whether you want to submit a motion, or if you are defending one, experienced legal guidance is essential. Family law attorneys comprehend 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 of the sub-issues that develop from legal custody disputes, your best choice is to speak with an experienced family law attorney that can help you make the best choice for your circumstances.


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