Child Custody Motions – Requirements and Pitfalls

Many individuals that get divorced, whether they have an attorney or otherwise, believe that once the divorce judgment is entered, the case is over. If you do not have children, sometimes that holds true, however in family law, nothing is forever. Lots of Courts won't tell you that, and several attorneys that exercise family law won't advise clients concerning the fact that custody, parenting time, child support, and failures to adhere to the terms of a judgment of divorce, in addition to a list of other potential issues, are all reviewable by a Court and can change, if one party can confirm to the Court that an adjustment is necessary. Aside from child and spousal support, one of the most usual post-judgment motion for modification of a judgment in family law cases includes custody of a child or multiple children. When these motions are filed by unrepresented individuals, or by legal representatives that are not familiar with family law, they are frequently gratuitous or aren't truly requesting a modification in custody, yet instead, are seeking to enhance or reduce one party's parenting time.

What is Child Custody?

While this may appear like a simple or silly concern, it implies 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 legal representatives called "legal custody." The term "legal custody" in its most basic iteration means, that gets to make major decisions for the child, such as where they go 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 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 problems and agree before a decision is made. Commonly, what we call legal custody in Michigan is not what individuals think about initially when they talk about or think of child custody. The majority of people consider who physically has the children with them and for what amount of time. Informally, 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 usually identified as the proper terminology to use for this principle. Instead, the Courts and most lawyers who practice in this area, talk about "parenting time," when figuring out how much time each parent should have with the minor children.

Evaluating Adjustments in Child Custody.

Initially, litigants need to understand what they are asking the Court to do. When a parent wishes to make a motion to alter custody, good attorneys will make sure to learn exactly what it is the client intends to do. Often, a motion to raise or lower parenting time is better, and sometimes, is much easier to verify. In some cases, a party might just wish to ask the Court to decide on a legal custody issue where the parents can not agree, even though they may generally 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 greater than one hundred miles from the child's present county of residence (change of domicile motion). Most of those sub-categories of change of custody motions have details and various demands that should be confirmed to the Court in order for a party to be successful. However, when a parent does in fact want 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, ultimately, through evidence provided at a hearing.

Custody Hearings Need Process and Patience.

Informing the Court that the other party is bad and will not agree with you about anything is not going to be enough to alter 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 situations, the Court simply shakes its finger at both parties and says "get along and find a way to make things work." In cases where one parent really is the troublemaker, that result is very discouraging. Instead, there is a process and procedure whereby custody motions should be presented and argued, which a seasoned family law lawyer can offer assistance in doing. In all custody motions, the party that desires an adjustment needs 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 modification can not be an average life modification (puberty, changing from middle to high school, getting dental braces), but must be considerable change in the life of the child that has an effect on their daily life. Because each situation is unique, litigants should speak with counsel about their scenario prior to identifying whether the modification that parent is alleging fulfills the legal requirements. If you can show an adjustment in scenarios, then the Court should establish 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 sets the standard of proof the relocating party will certainly have to reach in order to get the requested adjustment of custody. If the Court establishes that the ECE will not transform as a result of approving the moving party's motion, then the standard of proof is a preponderance of the proof (just a bit more than 50%) that the adjustment of custody would certainly remain in the child's best interests. If the ECE will certainly alter 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 standard of past a reasonable doubt and substantially higher than preponderance 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 been shown, and the Court has made its determination regarding established custodial environment, then, despite the standard of proof, the Court will certainly think about the best interests of the minor child. Numerous litigants believe 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. In fact, the Courts typically pay little attention to the feelings of the parties for each other. Rather, they are concentrated on what is best for the child and the child's well-being. Frequently, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will commonly begin an inquiry regarding whether or not the aggressive parent is stating adverse 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 seeking the modification to actually lose parenting time or possibly custody of the child where they had begun attempting to obtain more. The Court is not interested in the back and forth between parents. They need to focus on the twelve best interest factors set forth in the Child Custody Act when making their determination regarding how to make a decision a custody motion. Another common misunderstanding is that the variables 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 expressly denied this kind of mathematical estimation, and rather, have reviewed the complex interaction of the factors and the weight that Courts should give to each one.

Bottom Line.

Custody motions are complicated. The majority of litigants are ill equipped to manage them without legal help. Whether you desire to file a motion, or if you are defending one, experienced legal guidance is very important. Family law lawyers recognize the complexities of these motions and what it takes to be successful in filing one. If you are considering submitting such a motion for a change of custody, parenting time, or any of the sub-issues that develop from legal custody disputes, your best bet is to consult with an experienced family law lawyer that can help you make the very best choice for your conditions.

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