Child Custody Motions – Requirements and Pitfalls

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Many individuals that get separated, whether they have a lawyer 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, yet in family law, nothing is forever. Many Judiciaries won’t tell you that, and several lawyers who exercise family law will not recommend customers about the reality that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, in addition to a list of other potential problems, are all reviewable by a Court and can change, if one party can prove to the Court that a change is essential. Apart from child and spousal support, the most typical post-judgment motion for adjustment 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 attorneys who are not knowledgeable about family law, they are frequently unmerited or aren’t truly requesting a change in custody, but instead, are seeking to enhance or lower one party’s parenting time.

What is Child Custody?

While this might seem like a simple or dumb concern, it implies something very specific in Michigan law, and is typically misconstrued by both litigants and attorneys that practice in this field. In Michigan, the term “custody” is used as the colloquial for what family legal representatives know as “legal custody.” The term “legal custody” in its easiest 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 permits both parents to have input in these decisions, and require that both parents review those issues and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what individuals consider initially when they talk about or consider child custody. A lot of people think of who physically has the children with them and for what quantity of time. Informally, this kind of custody is referred to as “physical custody.” In Michigan, while several Courts recognize motions for adjustments to physical custody, in Michigan, the term “physical custody” is not generally acknowledged as the proper terminology to use for this idea. Instead, the Courts and most attorneys that exercise in this area, speak about “parenting time,” when determining how much time each parent should have with the minor children.

Evaluating Adjustments in Child Custody.

Initially, litigants need to know what they are asking the Court to do. When a parent intends to make a motion to alter custody, good lawyers will ensure to learn precisely what it is the client wishes to do. Sometimes, a motion to boost or reduce parenting time is more appropriate, and in many cases, is much easier to prove. Sometimes, a party may only wish to ask the Court to decide on a legal custody issue where the parents can not agree, even though they might generally agree regarding other decisions. Some examples would be a change of school districts (change of schools motion), or a motion for one parent to relocate more than one hundred miles from the child’s current county of residence (change of domicile motion). Much of those sub-categories of change of custody motions have certain and various requirements that have to be verified to the Court in order for a party to be successful. Nonetheless, when a parent does in fact wish to transform 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, through proof offered at a hearing.

Custody Hearings Call For Process and Patience.

Informing the Court that the other party misbehaves and will not agree with you concerning anything is not going to be enough to change legal custody, even if that holds true. The other party will simply claim you are at fault and the Court will certainly have no way to decide that is actually the bad actor. In those scenarios, the Court simply 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 really aggravating. Instead, there is a process and procedure through which custody motions should be presented and argued, which a skilled family law lawyer can give help in doing. In all custody motions, the party that wants an adjustment needs to reveal that that there has actually been a “change in circumstances” that has actually happened since the last custody order was entered by the Court. The change can’t be a regular life change (puberty, changing from middle to high school, getting dental braces), but need to be considerable change in the life of the child that has an impact on their each day life. Due to the fact that each situation is distinct, litigants should talk to counsel about their situation prior to identifying whether the adjustment that parent is affirming satisfies the legal needs. If you can show a modification in conditions, after that the Court has 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, advice, affection and the necessities of life. The ECE decision by the Court establishes the standard of proof the relocating party will need to reach in order to acquire the requested modification of custody. If the Court establishes that the ECE will not transform as a result of granting the moving party’s motion, after that the standard of proof is a preponderance of the evidence (simply a little bit greater than 50%) that the modification of custody would certainly remain in the child’s best interests. If the ECE will change as a result of the motion, after that the standard of proof is clear and convincing proof (simply a bit less than the criminal standard of beyond a reasonable doubt and significantly greater than preponderance of the proof) that the change 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 made its determination regarding established custodial environment, after that, regardless of the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Several litigants think that the more bad things they can say about the other parent, the more likely they are to win. Nonetheless, that is frequently not true. As a matter of fact, the Courts generally pay little attention to the feelings of the parties for each other. Rather, they are concentrated on what is best for the child and the child’s well-being. Frequently, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly look upon that with suspicion, and will typically begin an inquiry regarding whether or not the aggressive parent is stating negative features of the other party in front of the child. If the Court thinks that is occurring, that can back fire, and cause the parent looking for the modification to actually lose parenting time or possibly custody of the child where they had started out 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 determination regarding exactly how to decide a custody motion. Another common mistaken belief is that the variables 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 type of mathematical calculation, and instead, have actually talked about the complex 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 aid. Whether you desire to submit a motion, or if you are defending one, knowledgeable legal advise is important. Family law lawyers understand the intricacies of these motions and what it takes to be successful in submitting one. If you are thinking of submitting such a motion for a change of custody, parenting time, or any of the sub-issues that arise from legal custody disagreements, your best choice is to consult with a knowledgeable family law lawyer who can help you make the very best decision for your conditions.


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