Lots of people who get divorced, whether they have a lawyer or not, think that when 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, absolutely nothing is forever. Numerous Courts won't tell you that, and numerous lawyers that exercise family law won't encourage customers regarding 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 problems, are all reviewable by a Court and can change, if one party can prove to the Court that a change is necessary. Besides child and spousal support, one of the most typical post-judgment motion for alteration 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 legal representatives who are not aware of family law, they are often gratuitous or aren't actually asking for a change in custody, however instead, are looking for to enhance or decrease one party's parenting time.
What is Child Custody?
While this may feel like an easy or foolish concern, it suggests something very specific in Michigan law, and is commonly misunderstood by both litigants and attorneys that 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 most basic iteration means, that gets to make significant choices for the child, such as where they go 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. Normally, the Courts defer to a joint legal custody model, which permits both parents to have input in these choices, and require that both moms and dads talk about those issues and agree before a decision is made. Often, what we call legal custody in Michigan is not what people think of first when they talk about or think of child custody. Most individuals consider who physically has the children with them and for what quantity of time. Informally, this type of custody is referred to as "physical custody." In Michigan, while numerous Courts acknowledge motions for changes to physical custody, in Michigan, the term "physical custody" is not normally identified as the suitable terminology to utilize for this principle. Instead, the Judiciaries and most attorneys who practice in this area, talk about "parenting time," when identifying just how much time each parent should have with the minor children.
Evaluating Modifications in Child Custody.
Initially, litigants need to recognize what they are asking the Court to do. When a parent wishes to make a motion to change custody, good attorneys will certainly make certain to discover specifically what it is the customer wants to do. Sometimes, a motion to increase or reduce parenting time is better suited, and sometimes, is much easier to confirm. Sometimes, a party may only want to ask the Court to make a decision on a legal custody problem where the moms and dads can not agree, despite the fact that they might normally agree regarding other decisions. Some instances 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 certain and different requirements that should be confirmed to the Court in order for a party to be successful. However, when a parent does in fact wish to change 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 provided at a hearing.
Custody Hearings Require Process and Patience.
Telling the Court that the other party misbehaves and will not agree with you regarding anything is not going to be enough to alter legal custody, even if that holds true. The other party will just say you are at fault and the Court will have no way to choose who is truly the bad actor. In those situations, the Court simply shakes its finger at both parties and says "get along and discover a way to make things work." In cases where one parent actually is the bad actor, that result is extremely irritating. Instead, there is a process and procedure whereby custody motions should be presented and argued, which a seasoned family law lawyer can provide assistance in doing. In all custody motions, the party that wants a modification needs to reveal that that there has 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 adjustment (puberty, changing from middle to high school, getting braces), but should be substantial adjustment in the life of the child that has an influence on their each day life. Because each circumstance is special, litigants should speak to counsel concerning their situation before figuring out whether the change that parent is declaring satisfies the legal requirements. If you can show an adjustment in situations, after that the Court has 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, assistance, 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 requested adjustment of custody. If the Court determines that the ECE will not change as a result of approving the moving party's motion, then the standard of proof is a prevalence of the proof (simply a little bit more than 50%) that the modification of custody would certainly remain in the child's best interests. If the ECE will transform as a result of the motion, then the standard of proof is clear and convincing evidence (simply a bit less than the criminal standard of beyond a reasonable doubt and considerably greater than preponderance of the proof) that the adjustment would certainly 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 made its decision pertaining to established custodial environment, after that, despite the standard of proof, the Court will think about the best interests of the minor child. Numerous litigants believe that the more bad things they can say regarding the other parent, the most likely they are to win. Nonetheless, that is often not true. As a matter of fact, the Courts usually 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 certainly frequently start an inquiry as to whether or not the hostile parent is claiming negative features of the other party in front of the child. If the Court believes that is happening, 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 started attempting to acquire more. The Court is not curious about 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 decision concerning just how to decide a custody motion. An additional typical mistaken belief is that the variables are a simple mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have specifically declined this kind of mathematical computation, and instead, have actually reviewed the complicated interaction of the factors and the weight that Courts should offer 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, seasoned legal guidance is necessary. Family law lawyers understand the intricacies of these motions and what it takes to be effective in submitting one. If you are thinking of filing such a motion for a change of custody, parenting time, or any one of the sub-issues that emerge from legal custody disagreements, your best option is to speak with a seasoned family law lawyer who can help you make the best decision for your conditions.
