Lots of people that get divorced, whether they have a lawyer or otherwise, believe that as soon as the divorce judgment is entered, the case is over. If you don't have children, many times that holds true, however in family law, nothing is forever. Several Courts will not tell you that, and lots of attorneys who practice family law will not advise clients concerning 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 prove to the Court that a modification is needed. Aside from 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 that are not acquainted with family law, they are frequently unmerited or aren't truly requesting a modification in custody, however rather, are seeking to raise or reduce one party's parenting time.
What is Child Custody?
While this may appear like a simple or foolish concern, it implies something very specific in Michigan law, and is frequently 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 called "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. Generally, the Courts defer to a joint legal custody model, which allows both parents to have input in these decisions, and require that both parents discuss those concerns and agree before a decision is made. Often, what we call legal custody in Michigan is not what people consider first when they discuss or consider child custody. Many people think of who physically has the children with them and for what amount of time. Colloquially, this form of custody is known as "physical custody." In Michigan, while several Courts recognize motions for modifications to physical custody, in Michigan, the term "physical custody" is not normally acknowledged as the ideal terminology to utilize for this principle. Instead, the Judiciaries and most lawyers who exercise in this area, speak about "parenting time," when figuring out how much time each parent should have with the minor children.
Evaluating Modifications in Child Custody.
First, litigants need to recognize what they are asking the Court to do. When a parent wishes to make a motion to transform custody, good legal representatives will certainly ensure to discover specifically what it is the customer wishes to do. Often, a motion to raise or lower parenting time is more appropriate, and in some cases, is much easier to verify. Occasionally, a party might just want to ask the Court to choose on a legal custody problem where the parents can not agree, although they might usually 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 greater than one hundred miles from the child's present county of residence (change of domicile motion). Much of those sub-categories of change of custody motions have specific and various requirements that must be confirmed 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 need to show the Court both in their motion, and, ultimately, with proof presented at a hearing.
Custody Hearings Require Process and Patience.
Informing the Court that the other party misbehaves and will not agree with you regarding 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 certainly have no way to decide 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 bad actor, that result is really discouraging. Instead, there is a process and procedure whereby custody motions should be presented and argued, which a knowledgeable family law lawyer can give support in doing. In all custody motions, the party that desires a change needs to reveal that that there has actually been a "change in circumstances" that has actually taken place since the last custody order was entered by the Court. The change can not be an average life modification (puberty, changing from middle to high school, getting braces), but must be substantial change in the life of the child that has an influence on their daily life. Since each situation is one-of-a-kind, litigants should speak with counsel concerning their scenario prior to figuring out whether the change that parent is affirming satisfies the legal requirements. If you can reveal a modification 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, support, affection and the necessities of life. The ECE decision by the Court establishes the standard of proof the relocating party will have to reach in order to acquire the asked for adjustment of custody. If the Court determines that the ECE will not alter as a result of providing the relocating party's motion, after that the standard of proof is a preponderance of the proof (just a bit greater than 50%) that the modification of custody would certainly 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 (just a little bit less than the criminal requirement of beyond a reasonable doubt and considerably more than prevalence of the proof) that the modification 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 determination regarding established custodial environment, then, no matter 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 claim regarding the other parent, the most likely they are to win. Nevertheless, 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. Oftentimes, if a moms and dad is vehemently and aggressively denouncing or attacking the other party, the Court will certainly look upon that with suspicion, and will commonly begin an inquiry as to whether the aggressive parent is saying unfavorable features of the other party in front of the child. If the Court believes that is occurring, that can back fire, and cause the parent seeking the adjustment to actually lose parenting time or possibly custody of the child where they had actually started out attempting to get extra. The Court is not curious about the back and forth between moms and dads. They must concentrate on the twelve best interest factors set forth in the Child Custody Act when making their resolution about just how to determine a custody motion. One more usual misunderstanding is that the elements are a simple mathematical calculation: if more factors favor one parent than the other, the parent with more should get custody. The Courts have actually expressly declined this sort of mathematical calculation, and instead, have actually discussed the intricate interaction of the factors and the weight that Courts should offer to each one.
Bottom Line.
Custody motions are complicated. Most litigants are ill equipped to manage them without legal help. Whether you desire to file a motion, or if you are defending one, knowledgeable legal advice is important. Family law lawyers recognize the intricacies 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 occur from legal custody conflicts, your best bet is to consult with a seasoned family law lawyer who can help you make the very best decision for your scenarios.
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