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Child Custody Motions – Requirements and Pitfalls

Many individuals that get separated, whether they have a lawyer or otherwise, believe that once 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, nothing is forever. Numerous Judiciaries will not tell you that, and several lawyers that exercise family law won’t advise clients about the reality that custody, parenting time, child support, and failures to comply with the terms of a judgment of divorce, along with a list of other prospective problems, are all reviewable by a Court and can change, if one party can prove to the Court that a change is required. Apart from child and spousal support, the most usual post-judgment motion for adjustment 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 knowledgeable about family law, they are commonly unworthy or aren’t truly asking for a change in custody, but instead, are seeking to boost or decrease one party’s parenting time.

What is Child Custody?

While this might look like a straightforward or foolish inquiry, it implies something very specific in Michigan law, and is typically misunderstood by both litigants and attorneys 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 most basic iteration means, who 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. Typically, 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 parents discuss those concerns and agree before a choice is made. Typically, what we call legal custody in Michigan is not what individuals think about first when they discuss or think of child custody. A lot of folks think about who physically has the children with them and for what amount of time. Colloquially, this type of custody is known as “physical custody.” In Michigan, while many Courts acknowledge motions for modifications to physical custody, in Michigan, the term “physical custody” is not typically acknowledged as the proper terminology to utilize for this concept. Rather, the Judiciaries and most attorneys who practice in this area, speak about “parenting time,” when identifying how much time each parent should have with the minor children.

Evaluating Modifications in Child Custody.

Initially, litigants need to recognize what they are asking the Court to do. When a parent intends to make a motion to change custody, good legal representatives will certainly make certain to discover precisely what it is the client wants to do. In some cases, a motion to increase or lower parenting time is better, and in some cases, is much easier to show. Often, a party may only want to ask the Court to make a decision on a legal custody concern where the moms and dads can not agree, despite the fact that they may typically agree about other decisions. Some examples would be a change of school districts (change of schools motion), or a motion for one parent to relocate greater than one hundred miles from the child’s existing county of residence (change of domicile motion). A lot of those sub-categories of change of custody motions have certain and different needs that need to be shown to the Court in order for a party to be successful. Nevertheless, when a parent does in fact wish to alter 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, via evidence presented at a hearing.

Custody Hearings Call For Process and Patience.

Informing the Court that the other party misbehaves and will not agree with you regarding anything is not going to be enough to change legal custody, even if that holds true. The other party will merely say you are at fault and the Court will certainly have no way to determine that is actually the bad actor. In those situations, the Court merely shakes its finger at both parties and says “get along and discover a method to make things work.” In cases where one parent really is the bad actor, that result is really frustrating. Rather, there is a process and procedure through which custody motions should be presented and argued, which a knowledgeable family law lawyer can offer help in doing. In all custody motions, the party that wants an adjustment has to show that that there has actually been a “change in circumstances” that has happened since the last custody order was entered by the Court. The change can’t be a common life change (puberty, changing from middle to high school, getting braces), but should be substantial modification in the life of the child that has an influence on their everyday life. Because each scenario is special, litigants should speak to counsel about their scenario prior to determining whether the adjustment that parent is declaring fulfills the legal demands. If you can show an adjustment in scenarios, then the Court needs to 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 certainly have to reach in order to acquire the requested change of custody. If the Court identifies that the ECE will not change as a result of providing the relocating party’s motion, then the standard of proof is a prevalence of the proof (just a bit greater than 50%) that the adjustment of custody would certainly remain in the child’s best interests. If the ECE will transform 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 beyond a reasonable doubt and substantially more than preponderance 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 resolution pertaining to established custodial environment, after that, no matter the standard of proof, the Court will think about the best interests of the minor child. Several litigants assume that the more negative things they can state about the other parent, the more probable they are to win. However, that is typically not true. Actually, the Courts typically 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. Usually, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will frequently start an inquiry as to whether or not the hostile parent is claiming unfavorable aspects of the other party in front of the child. If the Court believes that is occurring, that can back fire, and cause the parent seeking the adjustment to actually lose parenting time or possibly custody of the child where they had started attempting to acquire extra. The Court is not thinking about the back and forth between parents. They have to focus on the twelve best interest factors set forth in the Child Custody Act when making their resolution about how to make a decision a custody motion. An additional common false impression is that the aspects are an easy mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have specifically denied this type of mathematical computation, and instead, have actually talked about the complicated 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 desire to file a motion, or if you are defending one, seasoned legal advice is necessary. Family law lawyers understand the intricacies of these motions and what it takes to be effective in submitting one. If you are thinking of filing such a motion for a change of custody, parenting time, or any of the sub-issues that arise from legal custody conflicts, your best option is to seek advice from a knowledgeable family law attorney that can help you make the best choice for your conditions.


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