Many individuals that get separated, whether they have a lawyer or otherwise, believe that as soon as the divorce judgment is entered, the case is over. If you do not have children, often times that holds true, yet in family law, nothing is forever. Lots of Courts will not tell you that, and numerous lawyers who exercise family law won’t encourage clients regarding the truth that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, in addition to a list of other possible concerns, are all reviewable by a Court and can change, if one party can show to the Court that an adjustment is required. Besides child and spousal support, one of 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 filed by unrepresented individuals, or by lawyers that are not knowledgeable about family law, they are frequently gratuitous or aren’t actually asking for an adjustment in custody, however rather, are looking for to raise or lower one party’s parenting time.
What is Child Custody?
While this may seem like a simple or dumb question, it indicates something very specific in Michigan law, and is frequently misconstrued by both litigants and attorneys that practice in this area. 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 most basic iteration means, that 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. Normally, the Courts defer to a joint legal custody model, which allows both parents to have input in these decisions, and require that both moms and dads review those concerns and agree before a decision is made. Frequently, what we call legal custody in Michigan is not what individuals consider initially when they speak about or consider child custody. A lot of folks think about who physically has the children with them and for what amount of time. Informally, this form of custody is called “physical custody.” In Michigan, while lots of Courts recognize motions for modifications to physical custody, in Michigan, the term “physical custody” is not usually identified as the suitable terminology to utilize for this concept. Instead, the Courts and most legal representatives who practice in this area, talk about “parenting time,” when determining just how much time each parent should have with the minor children.
Evaluating Adjustments in Child Custody.
Initially, litigants need to know what they are asking the Court to do. When a parent wishes to make a motion to change custody, good lawyers will certainly make sure to find out specifically what it is the client wants to do. In some cases, a motion to boost or decrease parenting time is better, and in many cases, is much easier to prove. Occasionally, a party might only intend to ask the Court to make a decision on a legal custody concern where the moms and dads can not agree, although they may normally agree about other decisions. Some examples would be a change of school districts (change of schools motion), or a motion for one parent to move more than one hundred miles from the child’s current county of residence (change of domicile motion). Many of those sub-categories of change of custody motions have particular and various demands that have to be confirmed to the Court in order for a party to be successful. Nevertheless, 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 proof presented at a hearing.
Custody Hearings Require Process and Patience.
Informing the Court that the other party misbehaves and won’t agree with you about anything is not going to be enough to alter legal custody, even if that is true. The other party will simply say you are at fault and the Court will have no way to decide that is actually the bad actor. In those situations, the Court simply shakes its finger at both parties and says “get along and find a method to make things work.” In cases where one parent actually is the troublemaker, that result is very discouraging. Rather, there is a process and procedure through which custody motions should be presented and argued, which a seasoned family law lawyer can provide aid in doing. In all custody motions, the party that desires 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 adjustment can not be an ordinary life adjustment (puberty, changing from middle to high school, getting dental braces), but should be significant change in the life of the child that has an influence on their on a daily basis life. Due to the fact that each scenario is one-of-a-kind, litigants should speak with counsel regarding their situation prior to identifying whether the adjustment that parent is alleging fulfills the legal needs. If you can show a modification in situations, after that the Court has to 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 determination by the Court establishes the standard of proof the moving party will have to reach in order to get the asked for modification of custody. If the Court establishes that the ECE will not alter as a result of providing the moving party’s motion, then the standard of proof is a prevalence of the evidence (just a little bit greater than 50%) that the adjustment of custody would remain 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 (just a little bit less than the criminal criterion of past a reasonable doubt and substantially greater than preponderance of the proof) that the change would be in the child’s best interests.
Best Interests of the Child Standard.
If a change of circumstances has actually been shown, and the Court has actually made its decision pertaining to established custodial environment, after that, despite the standard of proof, the Court will certainly think about the best interests of the minor child. Several litigants think that the more poor things they can say regarding the other parent, the most likely they are to win. However, that is commonly not true. Actually, the Courts typically 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 consider that with suspicion, and will certainly commonly begin an inquiry regarding whether or not the aggressive parent is saying unfavorable aspects of the other party in front of the child. If the Court thinks that is taking place, that can back fire, and cause the parent seeking the change to actually lose parenting time or potentially custody of the child where they had actually started out trying to acquire extra. The Court is not curious about 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 resolution regarding exactly how to make a decision a custody motion. An additional common misconception 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 actually specifically declined this sort of mathematical computation, and instead, have reviewed the intricate interplay of the factors and the weight that Courts should provide to each one.
Custody motions are complicated. Most litigants are ill equipped to handle them without legal support. Whether you wish to file a motion, or if you are defending one, skilled legal advise is essential. Family law attorneys understand the intricacies of these motions and what it takes to be successful in submitting one. If you are thinking of submitting such a motion for a change of custody, parenting time, or any of the sub-issues that arise from legal custody disputes, your best bet is to seek advice from a skilled family law lawyer that can help you make the best decision for your conditions.