Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
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Just what it sounds like, but it's VERY important. It affects the burden of proof that applies in a custody case. Let's examine the term itself:
established CUSTODIAL ENVIROMENT
That means that the judge, when he looks at the situation of the children, will examine whether or not there is a presently established custodial environment. Meaning this: if there IS a presently established custodial environment, it takes more proof, it takes a tougher burden of proof, to change it. The law (here in Michigan, and very likely in your state too) provides that in cases where there is ALREADY an established custodial environment, the burden of proof changes to one of "clear and convincing" evidence, as opposed to just a "preponderance" of the evidence, required to make any change in where those children live. In plain language "if the kids are settled, we're going to leave them settled, unless there is very clear, and very convincing, evidence that a change should be made. We're not going to be shifting children around, willy-nilly, just because the parents can't get along with each other."
That is, in fact, the public policy of the state. In order to understand what this means, we have to look at the several different CATEGORIES of the burden of proof that applies. (Yes, we're getting more technical now. But you are much more educated now, having read the prior chapters, and you're ready for this. It's an important point, and you need to understand it. Here we go.)
There are several different burdens of proof that may apply to a given lawsuit. The least restrictive, or the easiest burden to overcome, is that of the "preponderance of the evidence" standard: that means "more" evidence, and that's all it means. Example: You and I have a traffic accident, and you sue me for damages to your car. I counter-sue you, for damages to my car. Each of us thinks that the other ran a red light. At trial, you can prevail if you can present to the judge a "preponderance" of the evidence that I was at fault. Suppose that you have two witnesses, just you and your passenger, who believe that you went through the intersection on a green light. I have only one witness, myself, because I was alone in the car. No other witnesses were present. What does the poor judge do? If the judge believes all of the witnesses equally, believes that those witnesses are telling the truth to the best of their ability, the judge is left with the inescapable conclusion that some one is mistaken: we couldn't have BOTH had a green light, now could we? You will win the lawsuit (and I will have to pay for your car) because you presented more evidence than I did. You have two believable witnesses, and I have only one. You have presented a "preponderance" of the evidence, or "more" evidence. Not much more, but more. You win, IF the burden of proof is merely a "preponderance" standard.
The next category, which is more restrictive, more difficult to prove, is that of "clear and convincing" evidence. The evidence must be "clear" (dont forget to add the next word "AND" ) the evidence must be "convincing". They must both be together. CLEAR AND CONVINCING evidence. In that last lawsuit we discussed, over just who ran the red light, you would LOSE if the burden of proof that you were required to show was "clear and convincing" evidence. There are two witnesses to one, in your favor, but all of those witnesses were involved in the accident, none was neutral. You have a preponderance, but you DON'T have "clear and convincing" evidence. That "clear and convincing" standard of proof would require MORE. Maybe an impartial witness. Maybe video, or a picture. But something MORE than just a preponderance. So you'd lose.
The next, and even more restrictive, category of burden of proof is the "beyond a reasonable doubt" standard. That applies in a criminal case. The State must prove a defendant guilty "beyond a reasonable doubt", and, if there remains a reasonable doubt when the state is finished proving its case, the jury is OBLIGATED to find the defendant Not Guilty. Which is just exactly what happened in the O.J. Simpson case. The State proved its case, but the State didn't prove its case past the mark that the jury could fairly say "we do not have a reasonable doubt" about the testimony. Therefore, in accord with the law, the jury rendered a verdict of "Not Guilty", and Mr. Simpson walks.
The standard of proof in a criminal case has nothing to do with your child custody case. The Simpson example, above, is only here to make the point that there are THREE standards of proof, and you will be required to follow either the first one or the second one. The second one is FAR more restrictive than the first one, and this can be very important. But I dont want you to say to yourself "I'm going to go in there and prove my case." Your burden may be higher, tougher, by law. You need to know this. That is the point of this chapter.
So those are the three degrees of burden of proof, each more restrictive than the one before.
How does this affect child custody? Because there is a statute that says, in effect: "If there is an aready established custodial environment, a court will not make a change in that environment, unless the moving party can show, by CLEAR AND CONVINCING evidence, that changing the custodial environment is in the best interest of the children."
Ooooh. So if you can prove your case by a preponderance of the evidence, but can't prove your case by "clear and convincing" evidence, you will still lose. Why? Because you didn't meet the burden of proof.
That tougher burden of proof applies IF, AND ONLY IF, there is ALREADY an "established" custodial environment. If there is not an "established custodial environment", then the burden of proof is merely the "preponderance" standard.
So what is a custodial environment? In a moment, we're going to look at whether or not it's "established", but for now, just what is a custodial environment?
It's whether or not the kids are used to being in one particular environment. Are they used to going to the same school? Are they used to always going to one place for day care, after school? Are they used to going to the same church? Are they used to living in the same house? Do they have a regular circle of friends? Do they regularly go to the same park, to play? If the answers to these questions are "yes", then they have a custodial environment that they are used to following, that is to say, that custodial environment is "established", the kids are "situated", if you will, and someone attempting to change that environment must meet the tougher "clear and convincing" burden of proof, or that someone will lose. Must lose, according to the law.
Example: The parties divorced four years ago, and Mom got the house, and the physical custody of the kids. Note that the kids are going to the same school that they always did, and in fact living in the same house that they always did, the only thing new since the divorce is that Dad doesn't live there anymore. These kids are in an "established custodial environment", and, should Dad file to change custody, he must follow the tougher standard, he must prove his case by "clear and convincing" evidence, or he will lose. ["We're not going to be bouncing the kids around, willy-nilly, just because the parents can't get along...."]
Another, but far different, example: The parties divorced four years ago, and Mom got the house, and the physical custody of the kids. Then Mom switched jobs, requiring her to move from the East side of town to the West side of town, and the kids would be in a different neighborhood, and attending a different school. Dad files for a change of custody. He does NOT need to meet the tougher standard, he only needs to prove his case by a "preponderance of the evidence", because the kids are NOT in an "established custodial environment. It makes Dad's job, in proving the case, much easier than having to meet that tougher standard, doesn't it?
That's the significance of the term "established custodial environment". If there is one, then the task of moving those kids OUT of their "established custodial environment" is more difficult. A tougher burden of proof is required to be met.
Good luck with it.