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.
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.
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:
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:
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:
Factor (d). The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity:
Factor (e). The permanence, as a family unit, of the existing or proposed custodial home or homes:
Factor (f). The moral fitness of the parties involved:
Factor (g). The mental and physical health of the parties involved:
Factor (h). The home, school, and community record of the child:
Factor (i). The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference:
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):
Factor (k). Domestic violence, regardless of whether the violence was directed against or witnessed by the child:
Factor (l). Any other factor considered by the court to be relevant to a particular child custody dispute:
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.