Many people that get divorced, whether they have an attorney or not, believe that when the divorce judgment is entered, the case is over. If you don't have children, lot of times that is true, however in family law, nothing is for life. Lots of Judiciaries won't tell you that, and numerous lawyers who practice family law will not advise customers about the truth that custody, parenting time, child support, and failures to comply with the terms of a judgment of divorce, along with a list of other potential problems, are all reviewable by a Court and can change, if one party can verify to the Court that a modification is needed. Besides child and spousal support, the most usual post-judgment motion for modification of a judgment in family law cases includes custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by legal representatives who are not familiar with family law, they are commonly unmerited or aren't really requesting a change in custody, however rather, are looking for to boost or decrease one party's parenting time.
What is Child Custody?
While this might appear like an easy or dumb concern, it means something very specific in Michigan law, and is usually misinterpreted by both litigants and lawyers that exercise in this field. In Michigan, the term "custody" is used as the colloquial for what family lawyers called "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 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. Usually, the Courts accept a joint legal custody model, which permits both parents to have input in these decisions, and require that both moms and dads talk about those concerns and agree before a choice is made. Usually, what we call legal custody in Michigan is not what people think about first when they speak about or think about child custody. A lot of individuals think about who physically has the children with them and for what quantity of time. Colloquially, this kind of custody is referred to as "physical custody." In Michigan, while lots of Courts recognize motions for modifications to physical custody, in Michigan, the term "physical custody" is not usually identified as the proper terminology to make use of for this idea. Instead, the Courts and most legal representatives who exercise in this area, talk about "parenting time," when identifying just how much time each parent should have with the minor children.
Evaluating Adjustments in Child Custody.
First, litigants need to understand what they are asking the Court to do. When a parent wishes to make a motion to transform custody, good legal representatives will see to it to find out precisely what it is the client wants to do. Often, a motion to enhance or reduce parenting time is better suited, and sometimes, is a lot easier to confirm. Sometimes, a party might only wish to ask the Court to decide on a legal custody concern where the moms and dads can not agree, despite the fact that they might normally agree about other choices. Some instances would be a change of school districts (change of schools motion), or a motion for one parent to move greater 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 details and different requirements that need to be verified to the Court in order for a party to be successful. However, when a parent does in fact intend to alter legal custody of a child, there is a set of legal procedures that a party should show the Court both in their motion, and, inevitably, via evidence provided at a hearing.
Custody Hearings Require Process and Patience.
Informing the Court that the other party is bad and will not 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 certainly have no way to determine who is truly the bad actor. In those conditions, the Court simply shakes its finger at both parties and says "get along and find a way to make things work." In cases where one parent really is the troublemaker, that result is very aggravating. Instead, there is a process and procedure through which custody motions should be presented and argued, which an experienced family law attorney can offer aid in doing. In all custody motions, the party that wants an adjustment needs to reveal that that there has been a "change in circumstances" that has happened since the last custody order was entered by the Court. The adjustment can't be an ordinary life modification (puberty, changing from middle to high school, getting braces), but need to be significant adjustment in the life of the child that has an impact on their each day life. Due to the fact that each circumstance is one-of-a-kind, litigants should talk with counsel about their circumstance before determining whether the adjustment that parent is declaring fulfills the legal needs. If you can show a change in conditions, then 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 decision by the Court establishes the standard of proof the relocating party will certainly have 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 providing the relocating party's motion, then the standard of proof is a preponderance of the evidence (simply a bit more than 50%) that the adjustment of custody would be 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 evidence (simply a little bit less than the criminal standard of past a reasonable doubt and considerably more than preponderance of the proof) that the change 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 made its decision concerning established custodial environment, after that, no matter the standard of proof, the Court will certainly think about the best interests of the minor child. Several litigants assume that the more bad things they can claim about the other parent, the more probable they are to win. Nonetheless, that is typically not true. Actually, the Courts usually 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. Often, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will look upon that with suspicion, and will certainly frequently begin an inquiry as to whether 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 potentially custody of the child where they had begun attempting to obtain more. The Court is not interested in the back and forth between parents. They need to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their resolution regarding how to decide a custody motion. An additional typical misconception is that the aspects are a basic mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have actually specifically denied this type of mathematical calculation, and rather, have talked about the complex interplay 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 support. Whether you desire to file a motion, or if you are defending one, knowledgeable legal advice is very important. Family law attorneys understand the intricacies of these motions and what it takes to be effective 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 emerge from legal custody conflicts, your best bet is to consult with a knowledgeable family law attorney who can help you make the very best choice for your conditions.
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