Many individuals who get divorced, whether they have an attorney or not, believe that as soon as the divorce judgment is entered, the case is over. If you don't have children, often times that holds true, but in family law, absolutely nothing is forever. Several Courts will not tell you that, and numerous lawyers that exercise family law won't recommend customers concerning the truth 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 prospective issues, are all reviewable by a Court and can change, if one party can show to the Court that a modification is essential. Other than child and spousal support, one of the most usual post-judgment motion for adjustment of a judgment in family law cases includes custody of a child or multiple children. When these motions are submitted by unrepresented individuals, or by attorneys that are not knowledgeable about family law, they are frequently unjustifiable or aren't truly requesting a change in custody, yet instead, are seeking to raise or lower one party's parenting time.
What is Child Custody?
While this might feel like a basic or dumb inquiry, it implies something very specific in Michigan law, and is usually misunderstood by both litigants and attorneys who exercise in this field. In Michigan, the term "custody" is used as the colloquial for what family attorneys called "legal custody." The term "legal custody" in its easiest iteration means, that gets to make significant 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. Generally, 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 go over those concerns and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what people think about initially when they speak about or consider child custody. Many people consider who physically has the children with them and for what amount of time. Informally, this form of custody is called "physical custody." In Michigan, while several Courts identify motions for changes to physical custody, in Michigan, the term "physical custody" is not normally identified as the ideal terminology to utilize for this idea. Rather, the Courts and most attorneys that practice in this area, discuss "parenting time," when finding out how much time each parent should have with the minor children.
Evaluating Changes 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 certainly ensure to learn precisely what it is the client wants to do. In some cases, a motion to raise or lower parenting time is better suited, and sometimes, is a lot easier to prove. In some cases, a party may just intend to ask the Court to make a decision on a legal custody issue where the parents can not agree, although they might normally 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). Much of those sub-categories of change of custody motions have particular and different requirements that must be confirmed to the Court in order for a party to be successful. Nevertheless, when a parent does in fact intend to alter 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, via proof offered at a hearing.
Custody Hearings Need Process and Patience.
Telling the Court that the other party misbehaves and won't agree with you regarding anything is not going to be enough to alter legal custody, even if that is true. The other party will just claim you are at fault and the Court will have no way to determine who is actually the bad actor. In those conditions, the Court just shakes its finger at both parties and says "get along and identify a means to make things work." In cases where one parent truly is the troublemaker, that result is really aggravating. Rather, there is a process and procedure whereby custody motions should be presented and argued, which an experienced family law attorney can provide support in doing. In all custody motions, the party that wants an adjustment needs to show 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 not be an average life modification (puberty, changing from middle to high school, getting braces), but should be considerable change in the life of the child that has an impact on their daily life. Since each circumstance is unique, litigants should talk to counsel about their situation before determining whether the modification that parent is declaring meets the legal requirements. If you can reveal a modification in circumstances, then the Court must 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 resolution by the Court establishes the standard of proof the relocating party will need to reach in order to obtain the asked for modification of custody. If the Court identifies that the ECE will not transform as a result of giving the moving party's motion, after that the standard of proof is a prevalence of the proof (just a bit greater than 50%) that the adjustment of custody would certainly be in the child's best interests. If the ECE will certainly change as a result of the motion, then the standard of proof is clear and convincing proof (just a bit less than the criminal standard of past a reasonable doubt and considerably greater than prevalence of the proof) that the modification would remain 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 resolution concerning established custodial environment, then, despite the standard of proof, the Court will consider the best interests of the minor child. Many litigants think that the more bad things they can state concerning the other parent, the more probable they are to win. Nevertheless, that is often not true. Actually, the Courts usually pay little attention to the feelings of the parties for each other. Instead, they are concentrated 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 certainly consider that with suspicion, and will frequently start an inquiry regarding whether or not the aggressive parent is stating adverse things about 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 change to actually lose parenting time or possibly custody of the child where they had started out trying to get more. The Court is not thinking about 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 decision concerning exactly how to choose a custody motion. One more usual 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 estimation, and rather, have actually reviewed the intricate interaction of the factors and the weight that Courts should offer to each one.
Bottom Line.
Custody motions are complicated. Most litigants are ill equipped to manage them without legal help. Whether you want to file a motion, or if you are defending one, skilled legal advice is necessary. Family law lawyers understand the complexities of these motions and what it takes to be effective in filing one. If you are thinking about 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 bet is to talk to an experienced family law attorney who can help you make the very best decision for your conditions.
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