Many people who get separated, whether they have an attorney or not, believe that as soon as the divorce judgment is entered, the case is over. If you do not have children, many times that is true, however in family law, absolutely nothing is for life. Many Courts won't tell you that, and several attorneys who practice family law will not advise customers concerning the fact that custody, parenting time, child support, and failures to follow the terms of a judgment of divorce, along with a list of other possible issues, are all reviewable by a Court and can change, if one party can confirm to the Court that a modification is needed. Other than child and spousal support, one of the most common 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 accustomed to family law, they are frequently unjustifiable or aren't truly asking for a modification in custody, however rather, are seeking to enhance or reduce one party's parenting time.
What is Child Custody?
While this may feel like a simple or dumb inquiry, it indicates something very specific in Michigan law, and is usually misinterpreted by both litigants and attorneys who exercise in this field. In Michigan, the term "custody" is used as the colloquial for what family lawyers know as "legal custody." The term "legal custody" in its simplest iteration means, who gets to make significant 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 allows both moms and dads to have input in these decisions, and require that both moms and dads review those concerns and agree before a decision is made. Usually, what we call legal custody in Michigan is not what people think about initially when they talk about or think about child custody. The majority of folks think about who physically has the children with them and for what quantity of time. Colloquially, this form of custody is known as "physical custody." In Michigan, while numerous Courts identify motions for adjustments to physical custody, in Michigan, the term "physical custody" is not normally identified as the suitable terminology to use for this idea. Rather, the Courts and most legal representatives that exercise in this area, talk about "parenting time," when finding out how much time each parent should have with the minor children.
Evaluating Modifications in Child Custody.
First, litigants need to recognize what they are asking the Court to do. When a parent wants to make a motion to change custody, good attorneys will make sure to find out precisely what it is the customer wishes to do. Often, a motion to increase or lower parenting time is better suited, and sometimes, is a lot easier to prove. In some cases, a party might only intend to ask the Court to make a decision on a legal custody problem where the moms and dads can not agree, although they might normally agree regarding 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 existing county of residence (change of domicile motion). Many of those sub-categories of change of custody motions have particular and various needs that should be verified to the Court in order for a party to be successful. However, when a parent does in fact want 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, through proof presented at a hearing.
Custody Hearings Need Process and Patience.
Telling 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 say you are at fault and the Court will have no way to determine that is really the bad actor. In those circumstances, the Court just 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 bad actor, that result is extremely aggravating. Rather, there is a process and procedure by which custody motions should be presented and argued, which a knowledgeable family law attorney can offer help 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 occurred 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 braces), but need to be substantial modification in the life of the child that has an effect on their everyday life. Since each situation is distinct, litigants should talk with counsel concerning their circumstance before determining whether the adjustment that parent is affirming fulfills the legal needs. If you can reveal an adjustment in circumstances, after that the Court should figure out 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 certainly have to reach in order to obtain the asked for adjustment of custody. If the Court figures out that the ECE will not alter as a result of giving the relocating party's motion, after that the standard of proof is a prevalence of the proof (simply a little bit greater than 50%) that the change of custody would certainly remain in the child's best interests. If the ECE will certainly transform as a result of the motion, then the standard of proof is clear and convincing proof (simply a little bit less than the criminal requirement of beyond a reasonable doubt and considerably higher than preponderance of the proof) that the modification 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 made its decision pertaining to established custodial environment, after that, no matter the standard of proof, the Court will consider the best interests of the minor child. Several litigants think that the more bad things they can state concerning the other parent, the more likely they are to win. However, that is commonly not true. Actually, the Courts normally 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. Oftentimes, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will certainly look upon that with suspicion, and will often begin an inquiry regarding whether the aggressive parent is claiming adverse 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 actually begun attempting to obtain extra. The Court is not curious about the back and forth between parents. They should focus on the twelve best interest factors set forth in the Child Custody Act when making their determination regarding exactly how to choose 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 reviewed the intricate 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 manage them without legal support. Whether you want to file a motion, or if you are defending one, experienced legal counsel is necessary. Family law attorneys comprehend the complexities of these motions and what it takes to be successful in filing one. If you are thinking about submitting such a motion for a change of custody, parenting time, or any one of the sub-issues that emerge from legal custody conflicts, your best bet is to seek advice from an experienced family law attorney who can help you make the best decision for your circumstances.
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