Child Custody Motions – Requirements and Pitfalls



Many individuals who get separated, 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, many times that holds true, however in family law, nothing is forever. Numerous Judiciaries won’t tell you that, and lots of lawyers who exercise family law won’t recommend customers about the reality that custody, parenting time, child support, and failures to abide by 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 verify to the Court that an adjustment is needed. Apart from child and spousal support, one of the most common 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 attorneys that are not familiar with family law, they are often gratuitous or aren’t truly asking for an adjustment in custody, yet instead, are seeking to increase or reduce one party’s parenting time.

What is Child Custody?

While this might look like a basic or stupid question, it indicates something very specific in Michigan law, and is often misunderstood by both litigants and attorneys who practice in this field. 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 most basic iteration means, that gets to make major choices for the child, such as where they go to school, should they have a major medical procedure, 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 parents review those problems and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what people consider first when they discuss or think of child custody. A lot 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 numerous Courts recognize motions for adjustments to physical custody, in Michigan, the term “physical custody” is not typically acknowledged as the appropriate terminology to make use of for this idea. Rather, the Judiciaries and most attorneys who practice in this area, talk about “parenting time,” when figuring out just how much time each parent should have with the minor children.

Evaluating Adjustments in Child Custody.

First, litigants need to understand what they are asking the Court to do. When a parent wishes to make a motion to transform custody, good legal representatives will certainly make sure to find out specifically what it is the client wants to do. Sometimes, a motion to raise or decrease parenting time is better, and sometimes, is a lot easier to verify. Often, a party might only want to ask the Court to choose on a legal custody problem where the parents can not agree, even though they might usually agree regarding other decisions. Some examples would be a change of school districts (change of schools motion), or a motion for one parent to relocate more than one hundred miles from the child’s current county of residence (change of domicile motion). A number of those sub-categories of change of custody motions have particular and various requirements that need to be verified to the Court in order for a party to be successful. Nevertheless, when a parent does in fact intend to alter legal custody of a child, there is a set of legal procedures that a party have to show the Court both in their motion, and, ultimately, with evidence presented 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 merely state you are at fault and the Court will certainly have no way to determine who is actually the bad actor. In those situations, the Court just shakes its finger at both parties and says “get along and find a means to make things work.” In cases where one parent truly is the troublemaker, that result is extremely aggravating. Instead, there is a process and procedure by which custody motions should be presented and argued, which an experienced family law attorney can supply aid in doing. In all custody motions, the party that wants a change needs to reveal that that there has actually been a “change in circumstances” that has actually occurred since the last custody order was entered by the Court. The change can’t be a regular life change (puberty, changing from middle to high school, getting dental braces), but must be considerable modification in the life of the child that has an influence on their every day life. Because each circumstance is one-of-a-kind, litigants should speak to counsel about their circumstance prior to identifying whether the change that parent is affirming satisfies the legal demands. If you can show a modification in situations, then the Court needs to 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, support, affection and the necessities of life. The ECE decision by the Court sets the standard of proof the moving party will need to reach in order to get the requested change of custody. If the Court figures out that the ECE will not alter as a result of approving the moving party’s motion, after that the standard of proof is a preponderance of the proof (just a bit greater than 50%) that the adjustment of custody would remain in the child’s best interests. If the ECE will change as a result of the motion, after that the standard of proof is clear and convincing evidence (simply a little bit less than the criminal standard of past a reasonable doubt and considerably more than prevalence of the proof) that the adjustment 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 made its decision concerning established custodial environment, then, no matter the standard of proof, the Court will take into consideration the best interests of the minor child. Several litigants believe that the more poor things they can claim about the other parent, the most likely they are to win. However, that is commonly not true. In fact, the Courts generally 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 consider that with suspicion, and will certainly often start an inquiry as to whether the aggressive parent is saying unfavorable 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 possibly custody of the child where they had started attempting to acquire more. The Court is not thinking 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 decision concerning how to choose a custody motion. One more common false impression 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 specifically denied this kind of mathematical computation, and instead, have actually talked about the complex interaction of the factors and the weight that Courts should provide to each one.

Bottom Line.

Custody motions are complicated. A lot of litigants are ill equipped to manage them without legal help. Whether you want to submit a motion, or if you are defending one, knowledgeable legal advice is very important. Family law attorneys comprehend the complexities of these motions and what it takes to be effective in filing one. If you are considering filing such a motion for a change of custody, parenting time, or any of the sub-issues that arise from legal custody conflicts, your best bet is to talk to a skilled family law attorney who can help you make the best choice for your conditions.

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