Child Custody Motions – Requirements and Pitfalls

Lots of people who get divorced, whether they have a lawyer or otherwise, think that when the divorce judgment is entered, the case is over. If you don't have children, lot of times that is true, yet in family law, absolutely nothing is forever. Many Courts will not tell you that, and numerous lawyers that practice family law won't advise clients about the truth that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, together with a list of other potential concerns, are all reviewable by a Court and can change, if one party can confirm to the Court that a modification is essential. Aside from child and spousal support, the most usual post-judgment motion for alteration 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 attorneys who are not acquainted with family law, they are typically unworthy or aren't truly requesting a modification in custody, but rather, are looking for to increase or lower one party's parenting time.

What is Child Custody?

While this might look like a basic or stupid concern, it suggests something very specific in Michigan law, and is commonly misunderstood by both litigants and lawyers that practice in this area. 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 significant decisions 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 accept a joint legal custody model, which allows both parents to have input in these decisions, and require that both moms and dads go over those issues and agree before a decision is made. Typically, what we call legal custody in Michigan is not what individuals consider first when they speak about or think of child custody. Most folks consider who physically has the children with them and for what quantity of time. Colloquially, this type of custody is called "physical custody." In Michigan, while lots of Courts recognize motions for modifications to physical custody, in Michigan, the term "physical custody" is not typically recognized as the proper terminology to utilize for this concept. Rather, the Judiciaries and most attorneys that practice in this area, talk about "parenting time," when figuring out how much time each parent should have with the minor children.

Evaluating Changes in Child Custody.

Initially, litigants need to recognize what they are asking the Court to do. When a parent wants to make a motion to alter custody, good lawyers will ensure to learn exactly what it is the customer wishes to do. Often, a motion to raise or decrease parenting time is better suited, and in many cases, is much easier to show. In some cases, a party may only intend to ask the Court to choose on a legal custody issue where the moms and dads can not agree, despite the fact that they may usually agree about other decisions. Some examples 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 present county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have specific and different needs that need to be proven to the Court in order for a party to be successful. Nevertheless, when a parent does in fact want to transform 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, ultimately, via proof offered at a hearing.

Custody Hearings Call For 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 modify legal custody, even if that holds true. The other party will just claim you are at fault and the Court will have no way to choose that is actually the bad actor. In those conditions, the Court merely shakes its finger at both parties and says "get along and identify a means to make things work." In cases where one parent really is the troublemaker, that result is very aggravating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which a seasoned family law lawyer can provide help in doing. In all custody motions, the party that desires a modification has 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 change can not be a normal life adjustment (puberty, changing from middle to high school, getting dental braces), but have to be considerable change in the life of the child that has an impact on their everyday life. Because each situation is special, litigants should speak with counsel regarding their circumstance prior to determining whether the adjustment that parent is alleging meets the legal needs. If you can show a change in circumstances, then the Court needs to identify 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 moving party will need to reach in order to get the asked for adjustment of custody. If the Court establishes that the ECE will not change as a result of approving the moving party's motion, after that the standard of proof is a preponderance of the evidence (simply a little bit more than 50%) that the modification of custody would certainly remain in the child's best interests. If the ECE will alter as a result of the motion, after that the standard of proof is clear and convincing evidence (simply a little bit less than the criminal requirement of beyond a reasonable doubt and substantially more than prevalence of the proof) that the adjustment would 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 decision relating to established custodial environment, after that, no matter the standard of proof, the Court will think about the best interests of the minor child. Many litigants believe that the more negative things they can say about the other parent, the more likely they are to win. Nonetheless, that is usually not true. Actually, the Courts normally 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. Oftentimes, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will consider that with suspicion, and will often start an inquiry as to whether or not the hostile parent is saying adverse aspects of the other party in front of the child. If the Court believes that is happening, that can back fire, and cause the parent looking for the adjustment to actually lose parenting time or possibly custody of the child where they had started trying to acquire more. The Court is not interested in the back and forth between moms and dads. They have to focus on the twelve best interest factors set forth in the Child Custody Act when making their resolution about how to determine a custody motion. An additional common misconception is that the elements 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 rejected this type of mathematical calculation, and rather, have actually discussed the complex interaction of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. Many litigants are ill equipped to handle them without legal assistance. Whether you wish to submit a motion, or if you are defending one, knowledgeable legal advice is necessary. Family law lawyers recognize the complexities of these motions and what it takes to be successful 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 develop from legal custody disagreements, your best bet is to speak with an experienced family law lawyer who can help you make the very best choice for your circumstances.