A child custody determination is defined by statute. Specifically the Uniform Child-Custody Jurisdiction and Enforcement Act found in MCL 722.1102(c). In many instances a parenting time case or other case is actually a custody case and custody law (vs. for example parenting time law) would apply.
(c) “Child-custody determination” means a judgment, decree, or other court order providing for legal custody, physical custody, or parenting time with respect to a child. Child-custody determination includes a permanent, temporary, initial, and modification order.MCL 722.1102(c)
It is important to understand if a request to modify a court order is a custody determination or someting else because if the request is a child custody determination, custody law applies, which is often different.
For example, in Shade v. Wright, 291 Mich.App. 17 (2010), the Michigan Court of Appeals determined that custody law would apply in a certain requests to change in parenting time, if the parenting time change would change the established custodial environment.
Similarly, in In Thurston v. Escamilla, our Supreme Court determined that a post divorce order granting a parent’s motion for a change of domicile (to move) was an order affecting the custody of the minor and therefore, custody law applied.
When a case involves a custody determination, a higher burden of proof is typically required to obtain court approval. For example, a change in parenting time generally requires a low burden of proof such as: “preponderance of the evidence”, which means more likely than not. Whereas a change in custody requires a high burden of prood such as: “clear and convincing evidence” which means “very highly probable” and is the highest burden of proof in a civil case.
The biblical saying: “things are not always as they may appear” is the key learning of this blog. Sometimes, requests for parenting time or domicile (to move) is really a requests to change custody and custody law (vs. for example, parenting time law) applies.
Understanding the applicable law is often paramount to winning.
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