Many people that get divorced, whether they have an attorney or otherwise, believe that as soon as the divorce judgment is entered, the case is over. If you do not have children, sometimes that is true, yet in family law, absolutely nothing is forever. Many Judiciaries will not tell you that, and several lawyers that exercise family law will not recommend customers regarding the truth that custody, parenting time, child support, and failures to abide by 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 verify to the Court that a modification is required. Aside from child and spousal support, one of the most usual post-judgment motion for alteration of a judgment in family law cases involves custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by attorneys that are not aware of family law, they are typically unmerited or aren’t actually requesting a modification in custody, but instead, are looking for to raise or lower one party’s parenting time.

What is Child custody?

While this might appear like an easy or dumb concern, it implies something very specific in Michigan law, and is commonly misunderstood by both litigants and lawyers that practice in this area. In Michigan, the term “custody” is used as the colloquial for what family legal representatives called “legal custody.” The term “legal custody” in its simplest iteration means, that gets to make significant choices for the child, such as where they go 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. Normally, 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 discuss those concerns and agree before a choice is made. Usually, what we call legal custody in Michigan is not what individuals think of first when they speak about or consider child custody. Many people consider who physically has the children with them and for what amount of time. Informally, this kind of custody is referred to as “physical custody.” In Michigan, while many Courts identify motions for adjustments to physical custody, in Michigan, the term “physical custody” is not usually identified as the appropriate terminology to use for this principle. Rather, the Judiciaries and most legal representatives who practice in this area, talk about “parenting time,” when identifying just how much time each parent should have with the minor children.

Evaluating Adjustments 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 attorneys will see to it to figure out precisely what it is the client wants to do. Often, a motion to increase or lower parenting time is better, and in many cases, is a lot easier to prove. Often, a party may only wish to ask the Court to decide on a legal custody issue where the parents can not agree, even though they might normally agree about other decisions. Some instances would be a change of school districts (change of schools motion), or a motion for one parent to relocate more 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 certain and different needs that should be shown to the Court in order for a party to be successful. Nonetheless, when a parent does in fact wish to transform legal custody of a child, there is a set of legal procedures that a party have to show the Court both in their motion, and, eventually, via evidence offered at a hearing.

Custody Hearings Need Process and Patience.

Telling the Court that the other party is bad and won’t agree with you about anything is not going to be enough to modify legal custody, even if that is true. The other party will simply state you are at fault and the Court will have no way to decide who is actually the bad actor. In those circumstances, the Court simply shakes its finger at both parties and says “get along and find a way to make things work.” In cases where one parent actually is the bad actor, that result is very discouraging. Instead, there is a process and procedure whereby custody motions should be presented and argued, which a skilled family law lawyer can give assistance in doing. In all custody motions, the party that wants a change has 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 change can’t be a normal life change (puberty, changing from middle to high school, getting braces), but have to be considerable adjustment in the life of the child that has an effect on their every day life. Because each situation is one-of-a-kind, litigants should speak with counsel about their situation prior to establishing whether the change that parent is declaring meets the legal demands. If you can reveal a modification in circumstances, then 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, advice, affection and the necessities of life. The ECE determination by the Court establishes the standard of proof the moving party will certainly need to reach in order to obtain the asked for modification of custody. If the Court establishes that the ECE will not alter as a result of approving the relocating party’s motion, after that the standard of proof is a prevalence of the proof (just a little bit greater than 50%) that the change of custody would remain in the child’s best interests. If the ECE will certainly change as a result of the motion, after that the standard of proof is clear and convincing evidence (just a little bit less than the criminal requirement of past a reasonable doubt and considerably higher than preponderance of the proof) that the change would certainly remain 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 concerning established custodial environment, after that, regardless of the standard of proof, the Court will consider the best interests of the minor child. Many litigants think that the more negative things they can say concerning the other parent, the most likely they are to win. Nonetheless, that is usually not true. In fact, the Courts generally 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. Usually, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly look upon that with suspicion, and will typically start an inquiry as to whether the hostile parent is saying unfavorable things about the other party in front of the child. If the Court believes that is taking place, 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 started out attempting to obtain more. The Court is not thinking about the back and forth between parents. They have to concentrate 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. An additional usual 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 expressly denied this type of mathematical computation, and rather, have reviewed the complex interplay 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 handle them without legal help. Whether you want to file a motion, or if you are defending one, experienced legal guidance is essential. Family law attorneys comprehend the intricacies of these motions and what it takes to be successful in submitting one. If you are thinking of filing such a motion for a change of custody, parenting time, or any of the sub-issues that arise from legal custody disagreements, your best option is to speak with a seasoned family law lawyer who can help you make the best choice for your circumstances.