Many individuals that get separated, whether they have an attorney or not, think that once the divorce judgment is entered, the case is over. If you don't have children, lot of times that holds true, but in family law, absolutely nothing is for life. Several Judiciaries won't tell you that, and many lawyers that exercise family law will not advise clients about the truth that custody, parenting time, child support, and failures to follow the terms of a judgment of divorce, along with a list of other possible concerns, are all reviewable by a Court and can change, if one party can prove to the Court that a change is required. Aside from child and spousal support, one of the most usual post-judgment motion for alteration of a judgment in family law cases involves custody of a child or multiple children. When these motions are submitted by unrepresented persons, or by attorneys who are not aware of family law, they are typically unworthy or aren't really requesting an adjustment in custody, yet instead, are looking for to raise or lower one party's parenting time.
What is Child Custody?
While this might seem like a simple or stupid concern, it indicates something very specific in Michigan law, and is often misconstrued by both litigants and attorneys who practice in this field. In Michigan, the term "custody" is used as the colloquial for what family legal representatives called "legal custody." The term "legal custody" in its simplest iteration means, that gets to make major choices 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. Typically, 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 problems and agree before a decision is made. Typically, what we call legal custody in Michigan is not what individuals think of first when they speak about or consider child custody. The majority of individuals consider 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 numerous Courts acknowledge motions for modifications to physical custody, in Michigan, the term "physical custody" is not generally recognized as the proper terminology to make use of for this concept. Rather, the Judiciaries and most legal representatives that exercise in this area, speak about "parenting time," when figuring out how much time each parent should have with the minor children.
Evaluating Adjustments in Child Custody.
First, litigants need to know what they are asking the Court to do. When a parent wishes to make a motion to alter custody, good attorneys will ensure to figure out specifically what it is the client wishes to do. In some cases, a motion to raise or lower parenting time is better suited, and sometimes, is a lot easier to verify. In some cases, a party may only wish to ask the Court to choose on a legal custody concern where the parents can not agree, despite the fact that they may typically agree concerning 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 current county of residence (change of domicile motion). Many of those sub-categories of change of custody motions have details and various needs that have to be proven to the Court in order for a party to be successful. However, when a parent does in fact intend to transform legal custody of a child, there is a set of legal procedures that a party must show the Court both in their motion, and, eventually, with proof offered at a hearing.
Custody Hearings Need Process and Patience.
Telling the Court that the other party is bad and will not agree with you regarding anything is not going to be enough to modify 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 who is really the bad actor. In those circumstances, the Court merely shakes its finger at both parties and says "get along and find a means to make things work." In cases where one parent truly is the troublemaker, that result is very irritating. Instead, there is a process and procedure whereby custody motions should be presented and argued, which a skilled family law attorney can offer support in doing. In all custody motions, the party that desires a change 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 adjustment can't be an average life modification (puberty, changing from middle to high school, getting dental braces), but need to be significant change in the life of the child that has an influence on their everyday life. Because each situation is unique, litigants should speak with counsel regarding their situation prior to establishing whether the modification that parent is affirming fulfills the legal needs. If you can show a modification in scenarios, then the Court needs to 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, advice, affection and the necessities of life. The ECE resolution by the Court sets the standard of proof the relocating party will certainly need to reach in order to obtain the asked for adjustment of custody. If the Court establishes 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 (simply a little bit greater than 50%) that the change of custody would be 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 proof (simply a bit less than the criminal requirement of past a reasonable doubt and significantly 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 revealed, and the Court has actually made its decision concerning established custodial environment, then, regardless of the standard of proof, the Court will take into consideration the best interests of the minor child. Numerous litigants believe that the more bad things they can state concerning the other parent, the more probable they are to win. However, that is frequently not true. As a matter of fact, the Courts normally pay little attention to the feelings of the parties for each other. Instead, they are focused 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 consider that with suspicion, and will certainly frequently begin an inquiry regarding whether or not the aggressive parent is claiming negative 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 modification to actually lose parenting time or possibly custody of the child where they had started trying to acquire extra. The Court is not interested in the back and forth between parents. They must concentrate on the twelve best interest factors set forth in the Child Custody Act when making their determination about how to decide a custody motion. Another common false impression 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 declined this sort of mathematical estimation, and instead, have actually discussed the complicated interaction of the factors and the weight that Courts should provide to each one.
Bottom Line.
Custody motions are complicated. A lot of litigants are ill equipped to handle them without legal assistance. Whether you want to file a motion, or if you are defending one, knowledgeable legal advice is essential. Family law lawyers recognize the intricacies of these motions and what it takes to be effective in filing one. If you are thinking of submitting such a motion for a change of custody, parenting time, or any one of the sub-issues that arise from legal custody disagreements, your best bet is to speak with an experienced family law lawyer that can help you make the most effective choice for your scenarios.
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