Many people who get separated, whether they have a lawyer or not, think that when the divorce judgment is entered, the case is over. If you don't have children, often times that holds true, however in family law, absolutely nothing is forever. Several Judiciaries will not tell you that, and lots of lawyers that exercise family law won't encourage clients concerning the fact that custody, parenting time, child support, and failures to follow the terms of a judgment of divorce, in addition to a list of other potential concerns, are all reviewable by a Court and can change, if one party can verify to the Court that a change is needed. Other than child and spousal support, the most usual post-judgment motion for adjustment 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 familiar with family law, they are often unjustifiable or aren't actually asking for a change in custody, but instead, are seeking to boost or decrease one party's parenting time.
What is Child Custody?
While this may look like a straightforward or foolish concern, it indicates something very specific in Michigan law, and is typically misinterpreted by both litigants and attorneys who 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 simplest iteration means, who gets to make significant decisions 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. Usually, the Courts accept a joint legal custody model, which permits both moms and dads to have input in these choices, and require that both moms and dads go over those issues and agree before a decision is made. Usually, what we call legal custody in Michigan is not what individuals consider first when they speak about 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 type 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 normally identified as the proper terminology to use for this concept. Rather, the Judiciaries and most lawyers who practice in this area, discuss "parenting time," when identifying just how much time each parent should have with the minor children.
Evaluating Modifications in Child Custody.
Initially, litigants need to know what they are asking the Court to do. When a parent intends to make a motion to transform custody, good attorneys will ensure to figure out exactly what it is the customer intends to do. In some cases, a motion to increase or reduce parenting time is more appropriate, and in some cases, is a lot easier to confirm. In some cases, a party might just intend to ask the Court to decide on a legal custody issue where the moms and dads can not agree, even though they may normally agree regarding 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 current county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have certain and various requirements that should be shown to the Court in order for a party to be successful. However, when a parent does in fact wish to change 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, inevitably, with proof offered at a hearing.
Custody Hearings Require Process and Patience.
Telling the Court that the other party misbehaves 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 just claim you are at fault and the Court will have no way to decide who is actually the bad actor. In those circumstances, the Court just shakes its finger at both parties and says "get along and identify a means to make things work." In cases where one parent actually is the bad actor, that result is very irritating. Rather, there is a process and procedure by which custody motions should be presented and argued, which an experienced family law lawyer can supply aid in doing. In all custody motions, the party that wants an adjustment has to show that that there has actually been a "change in circumstances" that has actually happened since the last custody order was entered by the Court. The adjustment can not be a common life modification (puberty, changing from middle to high school, getting dental braces), but need to be considerable change in the life of the child that has an impact on their on a daily basis life. Since each circumstance is distinct, litigants should speak with counsel about their situation prior to establishing whether the change that parent is affirming satisfies the legal needs. If you can show a modification in scenarios, 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 resolution by the Court sets the standard of proof the relocating party will certainly need to reach in order to get the requested modification of custody. If the Court figures out that the ECE will not alter as a result of giving the moving party's motion, after that the standard of proof is a preponderance of the evidence (just a little bit greater than 50%) that the change of custody would certainly remain in the child's best interests. If the ECE will certainly change as a result of the motion, then the standard of proof is clear and convincing proof (just a little bit less than the criminal criterion of past a reasonable doubt and significantly greater than prevalence of the proof) that the adjustment would be in the child's best interests.
Best Interests of the Child Standard.
If a change of circumstances has actually been revealed, and the Court has actually made its decision pertaining to established custodial environment, then, no matter the standard of proof, the Court will certainly think about the best interests of the minor child. Lots of litigants assume that the more poor things they can claim regarding the other parent, the more probable they are to win. However, that is frequently not true. In fact, the Courts normally pay little attention to the feelings of the parties for each other. Instead, they are concentrated on what is best for the child and the child's well-being. Usually, 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 often start an inquiry regarding whether the hostile parent is stating negative 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 looking for the change 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 decision concerning how to make a decision a custody motion. An additional common false impression 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 actually specifically denied this sort of mathematical calculation, and rather, have gone over the intricate interplay of the factors and the weight that Courts should provide to each one.
Bottom Line.
Custody motions are complicated. Many litigants are ill equipped to manage them without legal help. Whether you desire to file a motion, or if you are defending one, seasoned legal advise is very important. Family law attorneys understand the complexities of these motions and what it takes to be successful in filing one. If you are thinking about filing 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 bet is to seek advice from a seasoned family law lawyer that can help you make the best decision for your situations.
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