Many people that get separated, whether they have a lawyer 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 is true, yet in family law, nothing is for life. Lots of Judiciaries will not tell you that, and many attorneys that exercise family law will not recommend clients about the fact that custody, parenting time, child support, and failures to adhere to 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 prove to the Court that an adjustment is needed. Aside from child and spousal support, one of the most common 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 individuals, or by attorneys that are not knowledgeable about family law, they are often unjustifiable or aren't really asking for a modification in custody, but instead, are looking for to enhance or decrease one party's parenting time.
What is Child Custody?
While this might appear like a basic or foolish concern, it indicates something very specific in Michigan law, and is commonly misinterpreted by both litigants and attorneys that practice in this area. In Michigan, the term "custody" is used as the colloquial for what family attorneys referred to as "legal custody." The term "legal custody" in its most basic 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 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 parents to have input in these decisions, and require that both parents talk about those issues and agree before a decision is made. Typically, what we call legal custody in Michigan is not what individuals think of initially when they speak about or think about child custody. The majority of individuals think of who physically has the children with them and for what amount of time. Colloquially, this form of custody is referred to as "physical custody." In Michigan, while several Courts acknowledge motions for modifications to physical custody, in Michigan, the term "physical custody" is not normally recognized as the appropriate terminology to utilize for this principle. Instead, the Courts and most legal representatives who exercise in this area, speak about "parenting time," when determining just how much time each parent should have with the minor children.
Evaluating Modifications 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 transform custody, good legal representatives will ensure to find out exactly what it is the client wants to do. Sometimes, a motion to increase or decrease parenting time is better, and in many cases, is much easier to confirm. In some cases, a party might just intend to ask the Court to make a decision on a legal custody problem where the moms and dads can not agree, even though they may 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 existing county of residence (change of domicile motion). Much of those sub-categories of change of custody motions have certain and different requirements that have to be confirmed to the Court in order for a party to be successful. Nevertheless, 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, eventually, through evidence 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 modify 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 choose that is really the bad actor. In those circumstances, the Court simply shakes its finger at both parties and says "get along and identify a way to make things work." In cases where one parent actually is the troublemaker, that result is really frustrating. Instead, there is a process and procedure through which custody motions should be presented and argued, which a seasoned family law attorney can offer support in doing. In all custody motions, the party that wants a modification has to reveal that that there has actually been a "change in circumstances" that has actually occurred since the last custody order was entered by the Court. The adjustment can't be a normal life modification (puberty, changing from middle to high school, getting braces), but have to be considerable change in the life of the child that has an influence on their each day life. Because each circumstance is special, litigants should talk with counsel concerning their scenario prior to figuring out whether the adjustment that parent is declaring satisfies the legal demands. If you can show a change in scenarios, 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, assistance, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the relocating party will have to reach in order to get the asked for adjustment of custody. If the Court identifies that the ECE will not change as a result of granting the moving party's motion, then the standard of proof is a preponderance of the proof (simply a little bit greater than 50%) that the modification of custody would remain in the child's best interests. If the ECE will change as a result of the motion, then the standard of proof is clear and convincing proof (simply a little bit less than the criminal standard of past a reasonable doubt and significantly greater than prevalence of the evidence) that the modification would certainly be in the child's best interests.
Best Interests of the Child Standard.
If a change of circumstances has been revealed, and the Court has actually made its decision regarding established custodial environment, then, despite the standard of proof, the Court will consider the best interests of the minor child. Several litigants believe that the more bad things they can state about the other parent, the more probable they are to win. Nevertheless, that is usually not true. Actually, the Courts generally 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. Usually, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will certainly usually begin an inquiry regarding whether the hostile parent is stating adverse aspects of the other party in front of the child. If the Court thinks that is happening, that can back fire, and cause the parent seeking the adjustment to actually lose parenting time or possibly custody of the child where they had started attempting to acquire more. The Court is not thinking about the back and forth between moms and dads. They need to focus on the twelve best interest factors set forth in the Child Custody Act when making their determination about just how to make a decision a custody motion. An additional common misunderstanding is that the factors are an easy mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have specifically denied this type of mathematical estimation, and rather, have discussed the complicated interplay 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 manage them without legal help. Whether you want to submit a motion, or if you are defending one, skilled legal guidance is very important. Family law attorneys comprehend the intricacies of these motions and what it takes to be effective in filing one. If you are thinking of filing such a motion for a change of custody, parenting time, or any of the sub-issues that occur from legal custody conflicts, your best option is to consult with a knowledgeable family law attorney who can help you make the most effective decision for your scenarios.
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