Child Custody Motions – Requirements and Pitfalls

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Many individuals who get separated, whether they have a lawyer or not, 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, absolutely nothing is for life. Many Judiciaries won’t tell you that, and many lawyers that practice family law won’t suggest customers regarding the fact that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, along with a list of other prospective issues, are all reviewable by a Court and can change, if one party can show to the Court that a modification is required. Other than child and spousal support, one of the most common 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 who are not accustomed to family law, they are frequently unworthy or aren’t actually asking for a modification in custody, yet instead, are seeking to enhance or decrease one party’s parenting time.

What is Child Custody?

While this may seem like an easy or stupid question, it indicates something very specific in Michigan law, and is often misunderstood by both litigants and lawyers who practice 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 simplest iteration means, that gets to make major decisions for the child, such as where they most likely 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. Normally, the Courts defer to a joint legal custody model, which allows both moms and dads to have input in these choices, and require that both parents talk about those issues and agree before a decision is made. Frequently, what we call legal custody in Michigan is not what individuals think about first when they talk about or think about child custody. Many people think of who physically has the children with them and for what quantity of time. Colloquially, 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 typically identified as the appropriate terminology to make use of for this concept. Instead, the Judiciaries and most attorneys that exercise in this area, discuss “parenting time,” when finding out how much time each parent should have with the minor children.

Evaluating Changes in Child Custody.

Initially, litigants need to understand what they are asking the Court to do. When a parent intends to make a motion to alter custody, good attorneys will certainly see to it to figure out exactly what it is the client wants to do. Occasionally, a motion to raise or decrease parenting time is better, and in some cases, is a lot easier to prove. Occasionally, a party might just intend to ask the Court to decide on a legal custody concern where the moms and dads can not agree, even though they might normally agree regarding other choices. 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 current county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have particular and different needs that have to be proven to the Court in order for a party to be successful. Nevertheless, 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, eventually, via proof provided at a hearing.

Custody Hearings Require Process and Patience.

Informing the Court that the other party is bad and won’t agree with you regarding anything is not going to be enough to alter legal custody, even if that is true. The other party will simply 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 merely shakes its finger at both parties and says “get along and find a method to make things work.” In cases where one parent truly is the troublemaker, that result is really aggravating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which an experienced family law lawyer can offer support 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 occurred since the last custody order was entered by the Court. The change can’t be an average life modification (puberty, changing from middle to high school, getting braces), but should be substantial change in the life of the child that has an impact on their on a daily basis life. Since each scenario is special, litigants should speak with counsel concerning their scenario prior to figuring out whether the modification that parent is declaring satisfies the legal needs. If you can show an adjustment in circumstances, after that the Court must 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 moving party will have to reach in order to get the requested change of custody. If the Court determines that the ECE will not change as a result of providing the moving party’s motion, after that the standard of proof is a preponderance of the proof (just a little bit greater than 50%) that the modification of custody would remain 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 proof (just a bit less than the criminal criterion of past a reasonable doubt and substantially greater than prevalence of the evidence) that the modification would certainly be 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 determination regarding established custodial environment, after that, despite the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Numerous litigants believe that the more bad things they can state regarding the other parent, the more probable they are to win. Nonetheless, 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. 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 certainly consider that with suspicion, and will certainly usually start an inquiry as to whether or not the hostile parent is stating unfavorable things about 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 change to actually lose parenting time or possibly custody of the child where they had begun attempting to obtain more. The Court is not curious about the back and forth between parents. They should concentrate on the twelve best interest factors set forth in the Child Custody Act when making their decision concerning how to decide a custody motion. An additional usual mistaken belief is that the aspects are a simple mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have specifically rejected this type 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 manage them without legal help. Whether you wish to file a motion, or if you are defending one, skilled legal advise is necessary. Family law attorneys comprehend the intricacies of these motions and what it takes to be effective in filing one. If you are considering 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 bet is to talk to a skilled family law attorney that can help you make the very best choice for your conditions.


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