July 22, 2014

Best interest of the child in Michigan

Best interest of the child in Michigan

The Michigan Child Custody Act 1970 (amended 1980 and 1993) requires courts to consider the “best interest of the child“.  The following resources and answers to your questions address the circumstances where best interest of the child may play an important role in your Michigan family law case.

Resources and Answers to your questions:

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Best interest of the child explained

The best interest of the child in simple terms requires a court to make a determination of what is in a child’s best interest.  The Michigan legislature helps us define best interest of the child by requiring courts to evaluate and consider the following factors which are formally set forth in Michigan Compiled Laws Annotated section 722.23.

The statute provides us with a specific meaning for the best interest of the child with a catch all provision.  Specifically, factor (l) provides that a court can consider “any other factor considered by the court to be relevant to a particular child custody dispute.”  The factors set forth in the statute are provided below:

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

(b) The capacity and disposition of the parties involved to give love, affection, guidance, and continuation of the educating and raising the child in its religion or creed, if any;

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical and other remedial care;

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

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

(f) The moral fitness of the parties involved;

(g) The mental and physical health of the parties involved;

(h) The home, school, and community record of the child;

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference;

(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;

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

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

Michigan law requires that a court consider and sum each factor, however each factor need not be given equal weight.

For example it is possible for the majority of the best interest of the child factors to favor one parent, and only one factor favor the other parent.  If the one factor is very important under the circumstances, (e.g. mental health, school record . . .), it may outweigh the other factors combined.

Here is a link to sample questions relating to each Best Interest of the Child.

Child Custody cases:  Click here for a detailed explanation of Best Interest of the Child in a child custody case.

Parenting time cases:  Click here for a detailed explanation of Best Interest of the Child in parenting time case.

Guardianship cases:  Click here for an explanation of Guardianship

Choice of school, medical and joint legal custody issues:

As a joint legal custodian, parents have equal say in legal custody issues, which are major decisions regarding the child. Choice of school and medical issues are the most common joint legal custody issues.  If the parties are unable to agree on a decision regarding choice of school, medical issues or other joint legal custody issues, the court will set a hearing called a Lombardo hearing and render a decision on the joint legal custody issue.

The Michigan Court of Appeals in Lombardo v. Lombardo, ruled that that a circuit court must consider, evaluate and determinine each of the factors listed in the Best Interest of the Child statute (MCL 722.23).

In Pierron v. Pierron the Michigan Supreme Court held that in choice of school cases, unlike the practice for change of custody hearings the court must narrowly focus its consideration of each best interest factor on the specific important decision effecting the welfare of the child.

What questions are asked in a best interest hearing?(c) 2014 Daniel Findling

While every case is unique, below is a sample of questions that are typically asked in evaluating the  related to the “best interest of the child” under the child custody act:

1.  The Love, affection, and other emotional ties existing between the parties involved and the children.

How do you feel about your children?  How does your spouse feel about the children?  Describe your children’s relationship with you?  Describe you children’s relationship with your spouse?  Do you feel the love bond and ties to the children are about equal between you and your spouse?  How do your children know that you love them?  What would your children say if asked?  What is [name of child]’s favorite food?  TV Program, or books and / or stories?  How has [name of child] been affected by the marital separation?  What are you doing to correct the affects of the marital separation on the children?  What has your wife done to correct the affects of the marital separation on the children? Which of you is more likely to hear about your child’s problems, triumphs, adventures, comfort needed for a skinned knee, or joy shared after a proud accomplishment?

2.  The Capacity and disposition of the parties involved to give the child the love, affection, guidance, and continuation of educating and raising of the child in its religion or creed, if any?

How do you show the child(ren) love and affection?  How does your spouse show the children love and affection?  What kind of activities do you share with the children?  How much time is spent with each activity?  How do you discipline your children?  (Do you believe in hitting your children under any circumstance?)  How does your spouse discipline your children?  (Does he/she believe in hitting your children?)  What are your positive and negative points of your parenting skills as you see them?  What are the positive and negative points of your spouse’s parenting skills as you see them?  What are the rules of your home?  What are the rules of your spouse in his/her home?  Have you ever been abusive towards the children?   Has your spouse ever been abusive towards the children?  What is both your and your spouse’s religion?   Do you and your spouse feud over the religious upbringing of your children?  Who feeds the children?  Who bathes and dresses the children?  How do you teach your children manners?  Describe a typical day with your children?  Is there anything about yourself that could affect your ability to give love, affection and guidance?  How about your spouse?  How is your ability to discipline yourself?  Who comes first, the parent or the children?

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 the state in place of medical care, and other material needs.

Where do you work?  What is your salary? Where does your spouse work?   What is his/her salary?  How well do you feel you manage money?  How well does your spouse manage money?  Do you provide the [name of child] with food and clothing?  What does [name of child] eat for breakfast, lunch and Dinner?  Who arranges for the child’s doctor?  Does either parent deny medical care?  What is the name of the [name of child] doctor?  Dentist?  Who arranges for the babysitter?

4.  The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

Since your separation, on what dates have the children been with you / your spouse?  How has the parenting time been consistent?  Describe the home you live in.  What is the address?  Who lives there?  Describe your home with regard to location, safety, cleanliness and play areas?  Describe your spouse’s home with regard to location, safety, cleanliness and play areas?  What are your plans in terms of moving?  Where does [name of child] sleep in your home?  Where do the kids friends reside?  Who?  Where do they live?

5.  The permanence, as a family unit of the existing or proposed custodial home or homes?

How many times have you been married?  How many times has your spouse been married?  Since the separation has [your spouse] had any live in male/female friends?  What future home to you anticipate having for the child(ren)?  Do you have any plans to remarry?  How do you feel the children perceive the family unit?

6.  The moral fitness of the parties involved

Are you morally fit?  What does morally fit mean to you?  Have you ever used illegal drugs?  Do you drink alcohol?  Has there ever been allegations of abuse to the children?  Does you/your spouse have a criminal history?  How is your driving record?  Have you ever had a romantic encounter since you have married with someone other than your spouse?  Do you ever use foul language around the children?  What are your strengths with regard to your moral fitness?  What are your weakness with your moral fitness?  How have your children responded to the Divorce?  What are you doing about it?

7.  The mental and physical health of the parties involved

 Do you / your spouse have any physical health problems?  Have you ever been involved in counseling?  (If yes, where, when, why?)  Do you / your spouse have any mental health problems?  Have you / your spouse ever been hospitalized?  Have you ever been treated for metal health issues?

8.  The home, school and community record of the child

What school does [name of child] attend?  How are the children doing in school?  How are the child(ren)’s attitude about school?  Do they participate in any extracurricular activities?  Have you met the teachers?

9.  The reasonable preference of the child

In your opinion what is a sufficient age for children to state a preference with regard to custody?  How old is [name of child]?  Does he/she have a preference to be with you or your spouse?  What gives you that indication?  How do you feel the children would react to change in the established custody arrangement?

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?

How have you encouraged or facilitated a continuing relationship between the child(ren) and your spouse?  Has [insert name of spouse] encouraged or frustrated a continuing relationship between the children and yourself?  How has [name of spouse] attempted to remove or destroy the relationships between you and the children?  Have you cooperated with the parenting time schedule?  How do you and [name of spouse] get along right now?  Do you talk to her in front of the children?  Does she talk to you in front of the children?

11.  Domestic violence, regardless of whether the violence was directed against or witnessed by the child?

Have you ever been physically abusive to your spouse?  Has your spouse?  Have the children?

12. Other factors 

Are you aware of the availability of joint Custody?  What is joint custody?  Would you like joint physical custody? 

The Law – Cases and statutes on alimony in Michigan

The Michigan Court of Appeals in Lombardo v. Lombardo, ruled that that a circuit court must consider, evaluate and determinine each of the factors listed in the Best Interest of the Child statute (MCL 722.23).

In Pierron v. Pierron the Michigan Supreme Court held that in choice of school cases, unlike the practice for change of custody hearings the court must narrowly focus its consideration of each best interest factor on the specific important decision effecting the welfare of the child.

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By:  Daniel Findling

(c) 2014 Findling Law

The Divorce Guy, Michigan Divorce Attorneys and Specialists

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