Many people who get divorced, whether they have an attorney or not, think that as soon as the divorce judgment is entered, the case is over. If you don't have children, sometimes that holds true, however in family law, nothing is for life. Numerous Judiciaries won't tell you that, and lots of lawyers who practice family law won't recommend clients about 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 prospective issues, are all reviewable by a Court and can change, if one party can verify to the Court that a modification is necessary. Other than child and spousal support, one of the most common post-judgment motion for modification of a judgment in family law cases entails custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by legal representatives who are not accustomed to family law, they are commonly unjustifiable or aren't truly asking for a change in custody, however instead, are seeking to enhance or decrease one party's parenting time.
What is Child Custody?
While this may appear like a straightforward or foolish inquiry, it implies something very specific in Michigan law, and is typically misconstrued by both litigants and lawyers that exercise in this area. In Michigan, the term "custody" is used as the colloquial for what family lawyers referred to as "legal custody." The term "legal custody" in its most basic iteration means, who gets to make major 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. Normally, the Courts accept a joint legal custody model, which allows both parents to have input in these choices, and require that both moms and dads discuss those problems and agree before a choice is made. Typically, what we call legal custody in Michigan is not what individuals consider first when they discuss or consider child custody. A lot of people consider who physically has the children with them and for what quantity of time. Colloquially, this form of custody is called "physical custody." In Michigan, while numerous Courts recognize motions for modifications to physical custody, in Michigan, the term "physical custody" is not normally identified as the ideal terminology to use for this idea. Instead, the Courts and most legal representatives who exercise 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.
First, litigants need to know what they are asking the Court to do. When a parent intends to make a motion to transform custody, good legal representatives will make sure to figure out specifically what it is the customer intends to do. Sometimes, a motion to raise or decrease parenting time is better suited, and in some cases, is much easier to confirm. In some cases, a party may just wish to ask the Court to make a decision on a legal custody issue where the parents can not agree, although they may usually agree about 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). A lot of those sub-categories of change of custody motions have details and various needs that have to be verified to the Court in order for a party to be successful. However, when a parent does in fact want to transform legal custody of a child, there is a set of legal procedures that a party must show the Court both in their motion, and, eventually, via 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 concerning anything is not going to be enough to modify legal custody, even if that holds true. The other party will just say you are at fault and the Court will have no way to determine that is truly the bad actor. In those conditions, the Court simply shakes its finger at both parties and says "get along and discover a means to make things work." In cases where one parent really is the troublemaker, that result is extremely irritating. Instead, there is a process and procedure through which custody motions should be presented and argued, which a skilled family law attorney can give help in doing. In all custody motions, the party that wants a change has to show that that there has been a "change in circumstances" that has actually happened since the last custody order was entered by the Court. The change can not be a normal life change (puberty, changing from middle to high school, getting braces), but need to be substantial adjustment in the life of the child that has an effect on their each day life. Since each situation is distinct, litigants should talk with counsel regarding their situation before establishing whether the adjustment that parent is affirming fulfills the legal requirements. If you can show a change in circumstances, after that the Court needs 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, support, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the relocating party will need to reach in order to obtain the asked for modification of custody. If the Court determines that the ECE will not change as a result of granting the moving party's motion, then the standard of proof is a preponderance of the proof (simply a bit more than 50%) that the change of custody would be 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 evidence (simply a bit less than the criminal requirement of past a reasonable doubt and substantially more than preponderance of the evidence) that the adjustment would 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 resolution concerning established custodial environment, after that, regardless of the standard of proof, the Court will think about the best interests of the minor child. Many litigants assume that the more negative things they can say about the other parent, the more probable they are to win. Nevertheless, that is frequently not true. Actually, the Courts typically pay little attention to the feelings of the parties for each other. Rather, 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 look upon that with suspicion, and will certainly usually begin an inquiry as to whether the aggressive parent is claiming 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 looking for the change to actually lose parenting time or potentially custody of the child where they had actually begun attempting to acquire extra. The Court is not interested in the back and forth between moms and dads. They have to focus on the twelve best interest factors set forth in the Child Custody Act when making their decision regarding exactly how to determine a custody motion. One more common misunderstanding is that the elements 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 declined this sort of mathematical computation, and instead, have discussed the intricate interplay of the factors and the weight that Courts should give to each one.
Bottom Line.
Custody motions are complicated. A lot of litigants are ill equipped to manage them without legal assistance. Whether you desire to file a motion, or if you are defending one, experienced legal guidance is important. Family law lawyers recognize the intricacies of these motions and what it takes to be effective 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 develop from legal custody conflicts, your best choice is to speak with a knowledgeable family law attorney that can help you make the very best decision for your circumstances.
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