Child Custody in Michigan
When two parties have a child in common, whether married or not, child custody and visitation matters must be determined. There are cases where the parties can cooperate on custody and visitation however, where two parties cannot agree, you will need a court order to settle the disputes.
Custody may be determined as part of a divorce decree, it may be determined by consent order, mediation with an order entered after, or in extreme cases, via trial in Court. You need a child custody attorney on your side to represent your interests and to help ensure that you reach the outcome you are hoping for in regards to your child custody matter.
Legal Custody vs Physical Custody
Child custody is divided in to two areas of consideration. Legal Custody and Physical Custody.
Legal custody means having the right to make important decisions about your children, such as where they go to school, what religion they are, and major medical decisions.
Legal Custody can be “sole” or “joint.” Sole legal custody means only one parent makes all of the important decisions regarding the children (i.e. decisions regarding education, medical, religion), and Joint Legal Custody means the parties will share all of the important decisions (i.e., decisions regarding education, medical, religion). The default standard is to have Joint Legal Custody however, there are many reasons why one parent can gain sole legal custody of the children in Michigan, including the following:
- Both parents agree one parent should have sole custody
- One parent has a more flexible schedule
- The parents reside in different states
- The court has determined one parent to be unfit to make such decisions for the children.
Physical Custody refers to the children's living arrangements, i.e., how much time the child spends at each parents’ home. Again, physical custody can be sole or joint. Where the child resides with one parent or the other. Sole physical custody means the child(ren) reside with only one parent and that parent is considered to be the primary residential parent and the home is defined as the custodial home. This designation is important when considering parenting time and modifications to custody. Joint Physical Custody means everything is essentially equal. Parents would have equal time with the children (or very close to equal time) and parenting time is shared between homes with both homes being considered the custodial home.
When you are considering custody arrangements, you will need to speak with an experienced attorney. What is written here are only the basic considerations, but as discussed in our Parenting Time page, the schedule you choose or the determination by the court as to whether it is sole legal or sole physical custody can have consequences relating to modifications, support arrangements, and tax considerations. Please call us to discuss your case in more detail.
In Michigan, if you do not have a Judgment of Divorce or Judgment of Custody, you will need to file for Custody by filing a Complaint with the Court. In cases where parents are married, the custody and support provisions must and will be included as part of the Divorce Judgment. If you are not married, you will need to file a complaint for custody. The complaint for custody sets out the basics of the custodial arrangement you are seeking.
In determining child custody, Courts will allow parties to craft their own custody arrangements that suit the needs of the parties, the children, school and work schedules, etc. In short, you can set up custody based on an agreement between both parents so long as you certify it is in the best interests of the minor child. However, where parents cannot come to an agreement, the Courts’ will look to the Best Interest Factors of the minor child in making custody determinations (MCL 722.23):
- The love, affection, and other emotional ties existing between the parties involved and the child.
- 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;
- 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.
- The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- The permanence, as a family unit, of the existing or proposed custodial home or homes.
- The moral fitness of the parties involved.
- The mental and physical health of the parties involved.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
- 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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
- Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- Any other factor considered by the court to be relevant to a particular child custody dispute.
AS you can see, child custody encompasses a vast amount of information and considerations in determining child custody. It is not just one aspect and having an experienced custody attorney makes a difference.
Modification of Custody Orders
It's not uncommon for families or parents to need modifications to existing child custody orders or, the child custody provisions of a Judgment of Divorce. In Michigan, child custody and child support are always modifiable. This is not to say you can just walk into court and modify an order at will. Anyone seeking to modify a child custody order must show proof that a change is warranted.
This means that to modify a child custody order, you must show clear and convincing evidence that the need for modification is warranted and, the modification is in the best interest of the minor child(ren). The burden of clear and convincing evidence is akin to the phrase ‘Proof Beyond a Reasonable Doubt’ which is a substantial hurdle to overcome. Without proper representation and presentation of your case, you may find your motion dismissed for failing to show sufficient evidence to overcome this standard.
Once you have established clear and convincing evidence of the need for a change, the Court will again consider the best interest factors noted above. Please note, the standards for modification of parenting time are slightly different, for custody modifications, some common reasons can include:
- One parent moves out of state (or more than 100 miles)
- Life changes of a parent
- Safety Issues and/or Neglect or failure to properly care of the minor child
- Failing to utilize parenting time
- Failing to follow court orders
- Medical or educational needs of the child(ren)
Whatever the reason for your request to modify custody, there are significant challenges to making changes to existing orders. Having the right counsel and knowing how to present issues to the Court will make the difference. Know your rights and call us with any questions you may have.
If you have questions on the modification of parenting time, please contact us today.
“Children do not care about child support, who was married to whom, or why you don’t like each other. They are children, they care that their parents show-up, that when there is a Christmas recital, and they peek through the curtains – all of the people they love are there – without fighting, for the best interest of the child.” – Jessica James.