Lots of people that get divorced, whether they have an attorney or not, think that once the divorce judgment is entered, the case is over. If you do not have children, often times that holds true, but in family law, absolutely nothing is for life. Numerous Courts will not tell you that, and numerous attorneys that exercise family law won't advise customers about the truth that custody, parenting time, child support, and failures to comply with the terms of a judgment of divorce, together with a list of other potential concerns, are all reviewable by a Court and can change, if one party can confirm to the Court that a change is essential. Besides child and spousal support, the most usual post-judgment motion for modification of a judgment in family law cases includes custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by legal representatives who are not acquainted with family law, they are usually unmerited or aren't really requesting a modification in custody, but rather, are seeking to increase or decrease one party's parenting time.
What is Child Custody?
While this may seem like a straightforward or silly inquiry, it indicates something very specific in Michigan law, and is usually misunderstood by both litigants and attorneys who exercise in this area. 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, that gets to make major 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. Normally, the Courts defer to a joint legal custody model, which allows both moms and dads to have input in these choices, and require that both moms and dads go over those problems and agree before a choice is made. Usually, what we call legal custody in Michigan is not what people consider first when they discuss or think about child custody. A lot of people think about who physically has the children with them and for what quantity of time. Colloquially, this kind of custody is known as "physical custody." In Michigan, while numerous Courts identify motions for changes to physical custody, in Michigan, the term "physical custody" is not typically recognized as the appropriate terminology to make use of for this idea. Rather, the Courts and most attorneys who practice in this area, discuss "parenting time," when figuring out 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 wants to make a motion to transform custody, good legal representatives will certainly ensure to discover exactly what it is the customer intends to do. Often, a motion to boost or decrease parenting time is more appropriate, and sometimes, is a lot easier to confirm. In some cases, a party might only want to ask the Court to decide on a legal custody problem where the moms and dads can not agree, although they may normally agree concerning other choices. Some examples 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). A number of those sub-categories of change of custody motions have specific and various demands that should be proven to the Court in order for a party to be successful. Nonetheless, when a parent does in fact wish to alter legal custody of a child, there is a set of legal procedures that a party need to show the Court both in their motion, and, ultimately, through evidence presented at a hearing.
Custody Hearings Require Process and Patience.
Telling the Court that the other party is bad and won't agree with you regarding anything is not going to be enough to change legal custody, even if that is true. The other party will merely state you are at fault and the Court will certainly have no way to choose that is truly the bad actor. In those conditions, the Court just shakes its finger at both parties and says "get along and discover a method to make things work." In cases where one parent truly is the bad actor, that result is extremely aggravating. Rather, there is a process and procedure through which custody motions should be presented and argued, which an experienced family law lawyer can supply assistance in doing. In all custody motions, the party that wants a modification needs to show that that there has actually been a "change in circumstances" that has happened since the last custody order was entered by the Court. The modification can't be a common life adjustment (puberty, changing from middle to high school, getting dental braces), but need to be considerable modification in the life of the child that has an influence on their daily life. Because each scenario is special, litigants should talk to counsel about their situation before determining whether the modification that parent is declaring fulfills the legal demands. If you can reveal a change in conditions, after that the Court must 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, guidance, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the moving party will need to reach in order to obtain the requested modification of custody. If the Court identifies that the ECE will not transform as a result of providing the moving party's motion, after that the standard of proof is a preponderance of the proof (simply a little bit more than 50%) that the modification of custody would be in the child's best interests. If the ECE will transform as a result of the motion, after that the standard of proof is clear and convincing proof (just a bit less than the criminal criterion of past a reasonable doubt and considerably more than preponderance of the evidence) that the change would certainly be in the child's best interests.
Best Interests of the Child Standard.
If a change of circumstances has been shown, and the Court has actually made its determination pertaining to established custodial environment, then, regardless of the standard of proof, the Court will consider the best interests of the minor child. Lots of litigants think that the more negative things they can claim regarding the other parent, the more probable they are to win. However, that is usually not true. As a matter of fact, the Courts normally 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. Often, if a parent 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 the hostile parent is saying negative things about the other party in front of the child. If the Court believes that is occurring, 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 begun trying to get more. The Court is not thinking about the back and forth between moms and dads. They need to concentrate on the twelve best interest factors set forth in the Child Custody Act when making their resolution concerning exactly how to make a decision a custody motion. Another common mistaken belief is that the variables are an easy mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have actually specifically declined this kind of mathematical computation, and instead, have actually reviewed the complicated interplay of the factors and the weight that Courts should offer to each one.
Bottom Line.
Custody motions are complicated. The majority of litigants are ill equipped to handle them without legal aid. Whether you wish to file a motion, or if you are defending one, seasoned legal advise is very important. Family law attorneys comprehend the complexities of these motions and what it takes to be successful in filing one. If you are considering submitting such a motion for a change of custody, parenting time, or any one of the sub-issues that arise from legal custody conflicts, your best choice is to talk to a knowledgeable family law lawyer who can help you make the best choice for your conditions.
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