Many individuals who get divorced, whether they have a lawyer or otherwise, think that as soon as the divorce judgment is entered, the case is over. If you don't have children, lot of times that holds true, yet in family law, nothing is forever. Numerous Courts won't tell you that, and many lawyers who exercise family law will not recommend customers about the truth that custody, parenting time, child support, and failures to abide by the terms of a judgment of divorce, along with a list of other prospective issues, are all reviewable by a Court and can change, if one party can prove to the Court that an adjustment is essential. Other than child and spousal support, the most usual post-judgment motion for adjustment of a judgment in family law cases includes custody of a child or multiple children. When these motions are submitted by unrepresented individuals, or by legal representatives that are not familiar with family law, they are frequently gratuitous or aren't really requesting an adjustment in custody, however instead, are looking for to boost or lower one party's parenting time.
What is Child Custody?
While this might appear like a simple or dumb question, it indicates something very specific in Michigan law, and is frequently misinterpreted by both litigants and lawyers who practice in this area. In Michigan, the term "custody" is used as the colloquial for what family attorneys called "legal custody." The term "legal custody" in its simplest 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 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 allows both moms and dads to have input in these choices, and require that both moms and dads review those concerns and agree before a choice is made. Frequently, what we call legal custody in Michigan is not what individuals think of initially when they speak about or think about child custody. A lot of people think of who physically has the children with them and for what amount of time. Colloquially, this kind of custody is referred to as "physical custody." In Michigan, while many Courts acknowledge motions for adjustments to physical custody, in Michigan, the term "physical custody" is not normally identified as the proper terminology to make use of for this concept. Rather, the Judiciaries and most attorneys that exercise 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.
First, litigants need to know what they are asking the Court to do. When a parent wants to make a motion to alter custody, good lawyers will ensure to find out precisely what it is the customer wants to do. Often, a motion to increase or lower parenting time is more appropriate, and sometimes, is much easier to verify. Often, a party may just intend to ask the Court to make a decision on a legal custody concern where the parents can not agree, even though they may usually agree about other decisions. Some examples 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 details and different demands that have to be proven 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 evidence provided at a hearing.
Custody Hearings Require Process and Patience.
Telling 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 holds true. The other party will just say you are at fault and the Court will certainly have no way to determine who is truly the bad actor. In those scenarios, the Court merely shakes its finger at both parties and says "get along and discover a way to make things work." In cases where one parent really is the troublemaker, that result is really frustrating. Rather, there is a process and procedure by which custody motions should be presented and argued, which a seasoned family law lawyer can give support in doing. In all custody motions, the party that desires a change needs to show 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 adjustment can not be an ordinary life adjustment (puberty, changing from middle to high school, getting dental braces), but need to be considerable adjustment in the life of the child that has an effect on their every day life. Due to the fact that each circumstance is special, litigants should speak to counsel concerning their situation before establishing whether the change that parent is affirming satisfies the legal needs. If you can show a change in circumstances, then 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, advice, affection and the necessities of life. The ECE determination by the Court sets the standard of proof the moving party will have to reach in order to acquire the requested change of custody. If the Court identifies that the ECE will not alter as a result of granting the moving party's motion, after that the standard of proof is a preponderance of the evidence (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 alter as a result of the motion, then the standard of proof is clear and convincing proof (just a bit less than the criminal standard of beyond a reasonable doubt and considerably higher than prevalence of the proof) that the adjustment would certainly 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 relating to established custodial environment, then, no matter the standard of proof, the Court will certainly take into consideration the best interests of the minor child. Many litigants believe that the more negative things they can state regarding the other parent, the more likely they are to win. Nonetheless, that is commonly not true. As a matter of fact, 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. Frequently, if a parent is vehemently and aggressively denouncing or attacking the other party, the Court will certainly consider that with suspicion, and will usually begin an inquiry regarding whether or not the aggressive parent is stating unfavorable features of the other party in front of the child. If the Court thinks that is happening, that can back fire, and cause the parent looking for the modification to actually lose parenting time or possibly custody of the child where they had started out trying to acquire more. The Court is not curious about the back and forth between parents. They must concentrate on the twelve best interest factors set forth in the Child Custody Act when making their determination regarding exactly how to make a decision a custody motion. One more common false impression is that the aspects 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 type of mathematical calculation, and rather, have reviewed the complex interplay of the factors and the weight that Courts should give to each one.
Bottom Line.
Custody motions are complicated. Many litigants are ill equipped to handle them without legal support. Whether you desire to file a motion, or if you are defending one, seasoned legal advise is important. Family law lawyers understand the intricacies 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 occur from legal custody disagreements, your best bet is to seek advice from a seasoned family law attorney who can help you make the most effective choice for your circumstances.
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