Child Custody in Michigan

Importance of a Court Order

Usually the biggest issue in a divorce or initial family law case is child custody. Without a court order, the parent with the sharpest elbow can obtain possession of their child. Absent a breach of the peace, it is unlikely that police will respond or get involved. They will likely state that it’s civil matter and to work it out in court. Some Judges will enter an Order awarding interim custody without a hearing. Others will require that a hearing take place. This could happen on an emergency basis or could take two months. It depends on numerous factors and facts.

Legal and Physical Custody

There are two types of child custody: legal and physical. Overwhelmingly, the parents are awarded joint legal custody. That gives both parents the right to participate in major decisions regarding the child such as education, religious upbringing and medical care. Also to share records/documents regarding the child such as school and medical records. Absent being an ax murderer it is usually in the child’s best interest that both parents be awarded joint legal custody.
A few years ago, it was common to aggressively litigate who was awarded physical custody of the child. The law changed and the term has become almost meaningless. Now we only care about how many overnights the child will spend with each parent over the course of a year. This often comes down to practical considerations rather than legal ones: how far apart the parents live, work schedules, where is the child enrolled in school, is the child heavily involved in extracurricular activities, who does the child care, what sort of residence does either parent have and who do they live with.

Establishing Physical Custody

Both parents have the right to ask the Court to grant one parent sole physical custody of the child. It is likely that the court would order the parents to participate in a Friend of the Court Investigation and Mediation in an attempt to resolve this issue. Only then is the court likely to schedule an Evidentiary Hearing (similar to a trial). The law states that the Courts must consider 12 factors in coming to a decision:

Factor (a). The love, affection, and other emotional ties existing between the parties involved and the child:

• Who is the child bonded with?
• Who does the child go to with a problem?
• How does each parent relate with the child?
• How much time does each parent spend with the child each day?
• How often does each parent make the child’s meals?
• How often does each parent bathe the child, put the child to bed, and read the child stories?
• Are the parents able to separate the child’s needs from their own?
• How affectionate is the child with each parent?

Factor (b). The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any:

• Who stays home from work if the child is sick?
• Who usually handles school and homework issues?
• Who usually handles sports and other activities?
• How does each parent discipline the child?
• Is there verbal abuse toward the child and by whom?
• How often does each parent involve the child with grandparents, uncles, aunts, and others?
• Who takes the child to church or other religious events?

Factor (c). The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs:

• Who buys clothes, toys, food, etc. for the child?
• Who attends to any special needs of the child?
• What is the earning capacity of each parent?
• Who has flexibility in their work hours?
• How stable is the job of each parent?
• Who can provide health insurance for the child?
• Who makes doctor’s appointment for the child and takes the child to the doctor?
• Who arranges for childcare?
• If one parent earns more than the other, can child support be used to make things more equal?

Factor (d). The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity:

• Who provides a stable, secure, and safe home environment for the child?
• Who can provide less transition for the child?
• Has either parent moved recently and, if so, why? How has the child adjusted to the move?

Factor (e). The permanence, as a family unit, of the existing or proposed custodial home or homes:

• Who is in each parent’s family unit?
• Will the child live with siblings or half-siblings?

Factor (f). The moral fitness of the parties involved:

• Has either parent had an extra-marital affair the child knew about?
• Has there been physical or verbal abuse, alcohol or drug abuse, poor driving records, physical or sexual abuse of the child, criminal records, or other negative behaviors by either parent?
• How have these behaviors affected the child?
• Have these behaviors had a significant influence on that parent’s parenting skills?

Factor (g). The mental and physical health of the parties involved:

• Does either party have a physical or mental health problem that significantly interferes with their ability to care for the child?

Factor (h). The home, school, and community record of the child:

• How does each parent encourage and influence attendance at school?
• Who goes to school conferences and activities?
• Who will make sure the child sees and talks to their friends?
• Who supervises the child’s home responsibilities, like chores?
• Who helps the child with homework?

Factor (i). The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference:

• It is up to the court to decide whether a child is old enough to state a preference. Courts have considered children as young as eight old enough. The court will give more weight to this factor with children who are older or more mature. The child’s preference will not be shared with either parent.

Factor (j). The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents (assuming a relationship with each parent is good for the child):

• How will each parent cooperate with the parenting time schedule?
• Does either parent criticize the other parent in front of the child?
• Will each parent encourage a relationship between the child and the other parent?

Factor (k). Domestic violence, regardless of whether the violence was directed against or witnessed by the child:

• Has either parent been violent?
• If so, have there been police reports, arrests, or convictions?
• Has there been a pattern of domestic violence, including physical and non-physical abuse?

Factor (l). Any other factor considered by the court to be relevant to a particular child custody dispute:

• If a child has special needs, how does each parent take care of those needs?
• Has either parent threatened to kidnap the child?
• Has either parent missed visits with the child or failed to return the child from visits?
• Are there siblings or other children whose custody is relevant to this child’s custody arrangement?
• Are there significant others or new spouses whose relationship with the child affects the child’s best interest?
• Is there a possibility that two or more of the children may be separated?

A complicated and intricate system to establish physical custody. Once established, it becomes increasingly difficult to change. I liken it to cement hardening. Once a final Order has been entered, an important change needs to occur before Courts will even consider a change or modification. This concept is called a threshold.

If you have any questions or concerns regarding child custody and the law in the state of Michigan, please do contact me, Attorney Bo Schimers, and I will gladly provide a free phone consulation.