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, lot of times that holds true, yet in family law, absolutely nothing is forever. Many Courts won't tell you that, and numerous lawyers that practice family law won't recommend customers regarding the fact that custody, parenting time, child support, and failures to adhere to the terms of a judgment of divorce, in addition to a list of other possible concerns, are all reviewable by a Court and can change, if one party can verify to the Court that an adjustment is necessary. Apart from child and spousal support, one of the most usual post-judgment motion for adjustment of a judgment in family law cases entails custody of a child or multiple children. When these motions are submitted by unrepresented individuals, or by legal representatives that are not aware of family law, they are often unjustifiable or aren't actually requesting a change in custody, however rather, are looking for to boost or reduce one party's parenting time.
What is Child Custody?
While this may appear like an easy or stupid inquiry, it means something very specific in Michigan law, and is often misconstrued 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 easiest 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. Generally, the Courts defer to a joint legal custody model, which permits both moms and dads to have input in these decisions, and require that both parents go over those concerns and agree before a choice is made. Often, what we call legal custody in Michigan is not what people think about initially when they speak about or consider child custody. Most individuals think about who physically has the children with them and for what quantity of time. Informally, this type of custody is known as "physical custody." In Michigan, while several Courts identify motions for adjustments to physical custody, in Michigan, the term "physical custody" is not typically recognized as the appropriate terminology to make use of for this idea. Instead, the Judiciaries and most lawyers who practice in this area, talk about "parenting time," when identifying how much time each parent should have with the minor children.
Evaluating Changes in Child Custody.
Initially, litigants need to understand what they are asking the Court to do. When a parent wishes to make a motion to transform custody, good attorneys will certainly make sure to figure out precisely what it is the customer intends to do. In some cases, a motion to boost or lower parenting time is more appropriate, and in many cases, is a lot easier to show. Sometimes, a party might just want to ask the Court to make a decision on a legal custody problem where the parents can not agree, even though they might generally agree regarding 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 specific and various needs that should be proven to the Court in order for a party to be successful. Nevertheless, 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, ultimately, with evidence presented at a hearing.
Custody Hearings Need Process and Patience.
Informing the Court that the other party misbehaves and won't agree with you concerning anything is not going to be enough to alter legal custody, even if that is true. The other party will just say you are at fault and the Court will certainly have no way to choose that is truly the bad actor. In those scenarios, the Court just shakes its finger at both parties and says "get along and discover a means to make things work." In cases where one parent truly is the troublemaker, that result is very frustrating. Rather, there is a process and procedure through which custody motions should be presented and argued, which a knowledgeable family law lawyer can provide aid 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 happened since the last custody order was entered by the Court. The change can not be an average life change (puberty, changing from middle to high school, getting dental braces), but should be considerable modification in the life of the child that has an effect on their each day life. Due to the fact that each scenario is one-of-a-kind, litigants should talk with counsel about their circumstance prior to determining whether the change that parent is affirming meets the legal requirements. If you can show a modification in circumstances, after that the Court should identify 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, advice, 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 adjustment of custody. If the Court figures out that the ECE will not transform as a result of providing the relocating party's motion, after that the standard of proof is a prevalence of the proof (just a bit greater than 50%) that the modification of custody would certainly be 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 (just a little bit less than the criminal requirement of beyond a reasonable doubt and substantially higher than prevalence of the evidence) that the adjustment would certainly remain in the child's best interests.
Best Interests of the Child Standard.
If a change of circumstances has 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. Many litigants think that the more negative things they can state regarding the other parent, the most likely they are to win. Nevertheless, that is frequently not true. As a matter of fact, the Courts usually pay little attention to the feelings of the parties for each other. Instead, they are focused on what is best for the child and the child's well-being. Frequently, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will look upon that with suspicion, and will usually start an inquiry regarding whether or not the hostile parent is stating adverse things about the other party in front of the child. If the Court believes that is happening, that can back fire, and cause the parent seeking the modification to actually lose parenting time or potentially custody of the child where they had actually begun trying to obtain extra. The Court is not thinking about the back and forth between moms and dads. They must focus on the twelve best interest factors set forth in the Child Custody Act when making their decision regarding just how to choose a custody motion. Another usual misconception 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 denied this sort of mathematical estimation, and rather, have discussed the complicated interplay of the factors and the weight that Courts should give to each one.
Bottom Line.
Custody motions are complicated. Most litigants are ill equipped to manage them without legal support. Whether you wish to submit a motion, or if you are defending one, experienced legal advise is important. Family law attorneys comprehend the intricacies of these motions and what it takes to be effective in submitting one. If you are thinking about filing such a motion for a change of custody, parenting time, or any of the sub-issues that develop from legal custody disputes, your best bet is to consult with a knowledgeable family law lawyer who can help you make the best choice for your circumstances.
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