Lots of people who get separated, whether they have an attorney or not, believe that once the divorce judgment is entered, the case is over. If you do not have children, often times that is true, yet in family law, nothing is for life. Many Courts will not tell you that, and lots of attorneys that practice family law won't suggest customers regarding 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 verify to the Court that an adjustment is necessary. Aside from child and spousal support, the most common post-judgment motion for alteration of a judgment in family law cases entails custody of a child or multiple children. When these motions are submitted by unrepresented persons, or by legal representatives that are not knowledgeable about family law, they are commonly unjustifiable or aren't actually requesting a modification in custody, yet rather, are seeking to increase or lower one party's parenting time.
What is Child Custody?
While this may look like a basic or dumb concern, it indicates something very specific in Michigan law, and is often misunderstood by both litigants and attorneys that practice in this field. In Michigan, the term "custody" is used as the colloquial for what family legal representatives referred to as "legal custody." The term "legal custody" in its easiest iteration means, that 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. Normally, the Courts defer to a joint legal custody model, which permits both parents to have input in these decisions, and require that both moms and dads review those concerns and agree before a choice is made. Commonly, what we call legal custody in Michigan is not what people think about initially when they talk about or consider child custody. Many folks consider who physically has the children with them and for what quantity of time. Colloquially, this form of custody is known as "physical custody." In Michigan, while several Courts identify motions for changes to physical custody, in Michigan, the term "physical custody" is not generally recognized as the suitable terminology to make use of for this concept. Instead, the Judiciaries and most lawyers who practice in this area, talk about "parenting time," when identifying just how much time each parent should have with the minor children.
Evaluating Changes in Child Custody.
First, litigants need to understand what they are asking the Court to do. When a parent wants to make a motion to change custody, good legal representatives will make sure to learn precisely what it is the client wishes to do. Occasionally, a motion to boost or decrease parenting time is better, and in many cases, is a lot easier to verify. In some cases, a party may only intend to ask the Court to decide on a legal custody concern where the parents can not agree, even though they might typically agree regarding other decisions. Some examples 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 current county of residence (change of domicile motion). A number of those sub-categories of change of custody motions have specific and various needs that need to be shown to the Court in order for a party to be successful. However, when a parent does in fact intend 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, eventually, through evidence presented at a hearing.
Custody Hearings Call For Process and Patience.
Telling the Court that the other party is bad 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 merely say you are at fault and the Court will certainly have no way to choose who is truly the bad actor. In those conditions, the Court simply shakes its finger at both parties and says "get along and identify a means to make things work." In cases where one parent truly is the troublemaker, that result is very frustrating. Instead, there is a process and procedure by which custody motions should be presented and argued, which a skilled family law attorney can offer help 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't be a regular life adjustment (puberty, changing from middle to high school, getting dental braces), but should be significant modification in the life of the child that has an impact on their each day life. Because each circumstance is unique, litigants should talk with counsel about their scenario before establishing whether the change that parent is alleging satisfies the legal requirements. If you can reveal an adjustment in scenarios, 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, guidance, affection and the necessities of life. The ECE resolution by the Court sets the standard of proof the relocating party will certainly need to reach in order to get the asked for adjustment of custody. If the Court identifies that the ECE will not alter as a result of providing the relocating party's motion, then the standard of proof is a prevalence of the proof (simply a bit more than 50%) that the adjustment of custody would certainly be in the child's best interests. If the ECE will certainly transform as a result of the motion, after that the standard of proof is clear and convincing proof (simply a bit less than the criminal requirement of past a reasonable doubt and considerably higher than preponderance of the proof) that the change would 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 actually made its resolution pertaining to established custodial environment, after that, regardless of the standard of proof, the Court will take into consideration the best interests of the minor child. Lots of litigants believe that the more negative things they can state regarding the other parent, the most likely they are to win. Nevertheless, that is typically 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. Frequently, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will certainly often begin an inquiry as to whether or not the hostile parent is stating unfavorable features of the other party in front of the child. If the Court believes that is taking place, that can back fire, and cause the parent looking for the change to actually lose parenting time or possibly custody of the child where they had started out trying to obtain more. The Court is not curious about the back and forth between moms and dads. They should concentrate on the twelve best interest factors set forth in the Child Custody Act when making their resolution regarding just how to determine a custody motion. One more typical misconception 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 rejected this sort of mathematical computation, and instead, have actually gone over the intricate interaction 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 assistance. Whether you want to submit a motion, or if you are defending one, experienced legal advise is important. Family law lawyers understand the complexities 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 one of the sub-issues that occur from legal custody disagreements, your best option is to speak with a knowledgeable family law lawyer who can help you make the most effective decision for your circumstances.
No comments:
Post a Comment