Introduction to Michigan Child Custody

This is a brief overview of the law concerning child custody in Michigan. Custody disputes across State lines are governed by the Uniform Child Custody Jurisdiction and Enforcement Act and are not covered here. Disputes between parents and third parties also involve complications beyond the scope of this overview. Our focus here is upon disputes between parents to be resolved under the Michigan Child Custody Act.

With few limitations, the Court will generally go along with whatever custody arrangement the parents are able to negotiate between themselves. In the event of a disagreement between the parties, the Court may refer the parties the Friend of the Court for an investigation and recommendation.  If the Friend of the Court is unable to assist the parties in settling the dispute, the Court will generally refer the parties to mediation.  If mediation does not resolve the dispute, the parties will proceed to trial and the Court will hear evidence and resolve the dispute.

Child Custody Definitions

Legal Custody:

Right of parent to make important decisions regarding the child's welfare.

Physical Custody:

Parent with whom child resides and who has right to make day to day decisions regarding the child's welfare.

Sole Custody:

One parent alone has legal or physical custody or both.

Joint Custody:

Legal, physical, or both legal and physical custody are shared.

Joint Legal Custody:

The parents share the authority to make decisions regarding the child's welfare. The parents are expected to discuss and agree upon important decisions. The parents may generally not move more than 100 miles apart without the consent of the other parent or the Judge.

Joint Physical Custody:

The child resides on a more or less equal time basis with both parents. Times might alternate day to day, week to week, month to month, or child may be with one parent during school year and other during summer vacation. The parent with whom the child spends the greater time may be said to have Primary Physical Custody, and the other party to have Secondary Physical Custody.

Split Custody:

Each parent has physical custody of at least one of the children; usually weekends and holidays alternate, with the children together at those times.

Parenting Time:

The time the child spends with the parent who does not have physical custody, or defines the time each parent has in joint physical custody arrangements.  An actual description of the time with the child split between the parents.

These definitions are not set in stone. Generally, the actual arrangements of time that the children spend with their parents is more important than the label placed on the arrangement. For example, an arrangement that I might consider as providing sole physical custody to one parent and parenting time to the other may be labeled in the court order as joint physical custody; or an order labeled joint physical custody may actually have the children spending almost all of their time with only one parent.

Common Custody Arrangements

The most common custody arrangement in divorce cases is joint legal custody, with one party having physical custody and the other parent having parenting time.  In paternity cases, the mother often has both sole legal custody and sole physical custody.  Neither of these custody arrangements are written in stone. A typical parenting time schedule might be alternate weekends, every Wednesday evening, half of Christmas school break, alternate Spring break,  half the summer in alternating two week periods, alternate holidays, and provisions for birthdays, Mothers and Fathers Days.

With parents increasingly working weekends or night shifts, joint physical custody arrangements are becoming common.  One approach is to write out the schedules of each parent and child (school and day care), and then arrange the child's schedule to increase time with parents, minimize time with day care, and minimize travel back and forth.

Parenting time for infant and toddler children is often less than for school age children. Parenting time will often be less for unmarried fathers than for fathers who were married to the mother, because the married father will often have a closer relationship with the child and will have assumed more responsibility for the child. Summer parenting time varies considerably; it might only be two weeks or it might be nearly the entire summer. The parties may elect to alternate other holidays, or to always take particular holidays each year. Custody and parenting time schedules are not written in stone and variations are common.

There is no specific amount of parenting time which a Court must order. If the parties can agree upon the amount of parenting time, the Court must follow that agreement unless there is clear and convincing evidence that the agreement is not in the best interests of the child. If the parties cannot agree, the Court must grant the amount of parenting time which the Court finds to be in the best interests of the child. It is presumed that it is in the best interests of the child to have a strong relationship with both parents and that sufficient parenting time should be granted to promote that strong relationship. The Court can take into consideration any special needs of the child, the age of the child, the likelihood of abuse or neglect of the child during visits, likelihood that the non-custodial parent will actually appear for the visits, the travel time, threats to kidnap the child, and any other relevant factor. The Court may impose conditions and restrictions on the parenting time, including division of the cost and responsibility for transportation; restrictions on places where parenting time may occur; restrictions on who may be present during parenting time; and may require that the parenting time be supervised by third parties.

Michigan Child Custody Act

The resolution of custody disputes is governed by the Michigan Child Custody Act. The Act applies to all types of cases in which a custody dispute arises. Although this usually occurs within a divorce case, it may also occur in a separate maintenance case, support case, paternity case, or simply a case filed under the Child Custody Act itself.

This Act states that the Judge must resolve custody disputes by determining what is in the best interests of the child. The Act defines "best interests" as the sum total of the following factors:

1. The love, affection, and other emotional ties existing between the parties involved and the child.
2. The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
3. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this State in place of medical care, and other material needs.
4. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
6. The moral fitness of the parties involved.
7. The mental and physical health of the parties involved.
8. The home, school, and community record of the child.
9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
10. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
12. Any other factor considered by the court to be relevant to a particular child custody dispute.

The Court is not required to give equal weight to each factor. Depending upon the facts of a particular case, some factors will be more important than they would be in another case. Not infrequently, the Court may find both parents equal on all but one factor, and the case will be decided based upon that one factor. The closer the parents are on all factors, the more likely the Court will order joint physical custody or something close to it.

Custody Act Presumptions

Contrary to popular belief, the Child Custody Act does not contain a presumption that mothers are favored over fathers, or vice versa. However, there is a presumption which, if it applies, will often determine the outcome of a dispute. The Act states that, where there is an "established custodial environment", the party seeking a change of custody has the burden of proving that it is in the best interest of the child to change custody by "clear and convincing evidence". Where there is not an "established custodial environment", the usual burden of proof, preponderance of the evidence, applies. An "established custodial environment" is one in which "over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered."

As a practical matter, if a parent has had physical custody of a child for a significant amount of time, the noncustodial parent will lose a custody dispute absent a clear case showing the child will be better off if custody is changed. Such evidence might include physical or emotional abuse of the child, or serious problems in the life of the custodial parent, such as alcohol or drug abuse.

Free Initial Consultation

You may obtain a free initial office consultation with Michael Idema to discuss your custody issues by calling (616) 647-2200.

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Michael Idema

Divorce Lawyer

6410-A Alpine Ave NW

Comstock Park, MI 49321

(Between 7 & 8 Mile Roads)

mike@michaelidema.com

(616) 647-2200

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