Potentially one of the most contentious issues in a Michigan divorce is custody of the children. Michigan divorce and custody courts strive to encourage a close relationship between both parents and the children. If the parties can agree on a custodial arrangement, the court, under most circumstances, will adopt the agreement. If you cannot agree, the Court will make a decision based on the Michigan child custody act.
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Legal vs. Physical Custody
In Michigan, there are two types of custody that must be addressed, legal custody and physical custody.
- Legal custody gives a parent (sole) or both parents (joint legal custody) the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare. Most custody orders provide for joint legal custody which means, the parents share decision-making authority as to the important decisions affecting the welfare of the child. If the parents cannot agree the court will intervene.
- Physical custody defines where the child lives on a day-to-day basis. In the typical case, one parent is granted sole physical custody; that is, the child(ren) live with one parent. However, both parents can be granted joint physical custody and share (close to equally) the time with the child(ren).
“Custody” identifies the parent charged with “control” over the day to day decisions regarding raising a child.
Parenting time and visitation
“Parenting time” describes the frequency a parent spends with a child.
While Custody and Parenting time are similar, the law is different. It is rare, but not impossible for a parent to be awarded sole physical custody while the other parent spends the majority of time with the kids.
Courts are also shying away from the term “sole” physical custody, and awarding more parents joint physical custody. Under these circumstances, the focus is spent on parenting time, defining the number of overnights, each parent spends with the kids.
Initial burden (Modification of an existing child custody order)
A contested custody case has two steps. However, if you are modifying and existing custody order there is an additional step the court’s call the initial burden. To change an existing Michigan child custody order, you must first establish that there is proper cause or a change in circumstances to modify the existing Michigan child custody order. The change in circumstances must also be material as court’s are reluctant to modify custody orders unless there is a real good reason. After meeting the initial burden, a custody battle proceeds with the following two steps:
The first step in evaluating a contested custody case in Michigan is determining if there is an established custodial environment with one parent or both parents. An established custodial environment isdefined as:
If 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. See. (MCLA 722.27(1).
In simple terms, if the child has been living with one parent for a while, that parent will have an established custodial environment. As a general rule, courts are reluctant to remove a child from an established custodial environment. After determining if an established custodial environment exists, the courts will look at the best interest of the child(ren).
The Second step in evaluating a contested custody case in Michigan is to consider the best interest of the minor child.
Michigan adopted the Child Custody Act to require courts to consider the “best interest of the child” in child custody disputes. The courts evaluate and sum the following factors when determining what is in the best interest of a child:
(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.
A custody battle can be an expensive and complex process. In addition to the Friend of the Court, a custody battle may also include the use of an independent child custody evaluation. (http://www.thedivorceguy.com/a-child-custody-evaluation-are-you-ready-to-take-the-test/)
Court’s utilize the Friend of the Court to help navigate the 12 child custody factors and make recommendations to the parties and the court. This process often helps people settle the child custody dispute and if the parties are unable to decide, the judge will.
SAMPLE CHILD CUSTODY EXAMINATION QUESTIONS (c) 2013 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?
Child Support is money that should be used for the support of a child. However, there is no obligation for a parent to trace how the money is used. It is expected that support will be used for food, shelter, clothing, healthcare, entertainment and the costs associated with raising kids.
Michigan Courts are obligated to follow the Michigan Child Support Formula Manual. While a Court can deviate from the formula, it is a complex process and best handled by an attorney.
The most recent copy of the Michigan Child Support Formula Manual can be found here:
Most lawyers and courts have a computer program that applies the Michigan Child Support Formula Manual to your specific case. We are happy to run child support figures for you during your free consultation.
Under the Michigan Child Support Formula Manual it is apparent that Overnights and the Income of the parties are the primary factors in determining the amount of child support. These two factors effect child support more than any other. The other considerations, include, dependency exemptions, child care, and health insurance costs.
Both parents are obligated to support a child regardless of the parent’s financial situation. Child support is typically paid to the parent with the majority of overnights, and not necessarily the parent with physical custody. The amount of child support is related to the parties’ respective incomes.
The Family Support Act, MCLA 552.451 et. seq. and MCLA 722.711 et. seq. creates a statutory duty for parents to support a child with whom they are not living. In other words, the parent with physical custody receives child support. The parent with less overnights typically pays child support.
Michigan’s child support laws allow a court to order support for children who are under the age of 18 or until a child is 19 1/2 if they are full time high school students.
Post-Majority Support (College): While Michigan families may have a moral obligation to support a child after he/she turns 18. There is no legal obligation to do so. Notwithstanding, parties can agree as part of a global settlement to pay for a child’s post-majority or college expenses.
Does joint physical Custody equate to less child support?
No, overnights are everything, having Joint Physical Custody does not mean you pay or receive less child support. In fact, it is becoming more common for courts to order joint physical custody and concentrate on overnights and income in determining the amount of child support.
There are many different variables to be taken into consideration, and it must be remembered that all situations are unique.
Parenting time and Visitation
Michigan Law provides that parenting time (visitation) shall be granted in accordance with the best interest of the minor child. In most circumstances, Courts strongly recommend that parents develop their own arrangements for parenting time that take into consideration the unique circumstances of their family. If the parties can agree on parenting time, the court will typically order the parenting time terms unless it is shown that they are not in the best interest of the child. If the parties cannot agree on parenting time, the Court will order specific parenting time.
Often times, a Court will award “liberal”, “frequent”, or “reasonable” parenting time. These terms are sometimes used interchangeably and support the notion that parents have the ultimate responsibility to arrange a schedule of parenting time which is reasonably based upon the best interest of the children in your family situation.
Frequently Asked Questions
- If Child Support payments are not made, can parenting time be denied? Michigan law provides that a child shall have a right to visit with his/her parents unless it is shown on the record that there is clear and convincing evidence that it would endanger the minor child. Parenting time cannot be denied if child support payments are not made. Michigan does provide penalties for not paying child support, however, the penalties cannot include termination or suspension of parenting time.
- If I have joint physical custody do I still have to pay child support? A child support award is calculated in cases with joint custody. Joint physical custody does not have to mean equal parenting time. Child support is primarily based on the number of overnights the child spends with a parent and the income of the parties.
- What if we have equal parenting time (visitation) is support ordered? Child support will still be ordered unless the parties have the same income.
- At what age can a child decide who to live with? The legal answer is at the age of 18. Factor i of the the Best interest factors provides that a court can take the reasonable preference of a child into consideration, if the court considers the child to be of sufficient age to express preference. However, this factor does not give the power to the child to choose who to live with. Notwithstanding, a child’s preference can be highly relevant.
- How do I modify a custody order? A custody order can be modified by filing a motion with the court. You must first provide a good basis for modification. Michigan law requires a material change in circumstances since the last custody order. Provided there is a material change in circumstances, the court will schedule a hearing on the best interest factors.
- I have joint legal custody and we cannot agree on choice of school. How does the court decide? Pursuant to MCL 722.26a(7)(b) as a joint legal custodian, the parents share decision-making authority as to the important decisions affecting the welfare of the child. When the parents cannot agree on an important decision, such as a change of the child’s school, the court is responsible for resolving the issue in the best interests of the child. Lombardo v Lombardo, 202 Mich App 151, 159; 507 NW2d 788 (1993); see also MCL 722.25(1).
- Same Sex Custody Cases: Same sex custody cases is a rapidly evolving area of the law. Currently, Michigan does not recognize same sex marraiges. Furthermore, the Michigan Court of Appeals dismissed a lawsuit from a woman seeking custody and other rights from her former partner. The court reasoned that only a biological parent [or adoptive] parent can assert a claim for custody. See Milliron vs. Millrion.
Michigan Custody and Child Support Articles by the Divorce Guy
- Parenting time guidelines and directives: http://www.thedivorceguy.com/parenting-time-guidelines-and-directives/
- Child Custody evaluations: http://www.thedivorceguy.com/a-child-custody-evaluation-are-you-ready-to-take-the-test/
- Parental kidnapping: http://www.thedivorceguy.com/country-star-mindy-mccready-and-parental-kidnapping/
- Birth Support: http://www.thedivorceguy.com/birth-support-preglimony-and-the-costs-of-giving-birth/
- Child Support Collection: http://www.thedivorceguy.com/child-support-collection-and-the-impossibility-defense/
- Veterans benefits: http://www.thedivorceguy.com/the-veterans-benefit-myth-va-benefits-and-divorce/
Michigan Divorce and custody and child support case law and statutes
MCL section 722.21:
Section 11 of the Child Custody Act of 1979
Statutory parental presumption
MCL 722.25(1): Custody battle between a parent and a third party gives priority to the parental presumption.
Heltzel v. Heltzel, 248 Mich App 1 (2001) The parental presumption applies and prevails regardless of whether the parent is a fit parent.
Uniform child custody Jurisdiction and Enforcement Act
(UCCJEA): governs interstate custody disputes
Established Custodial Environment
722.27(1)(c): A court cannot enter a new custody order or amend an existing order without first determining if there is an established custodial environment.
Ireland v Smith, 214 Mich App 235 (1995) In a Michigan custody dispute an established custodial environment is a preliminary and essential determination.
MCL 722.27: If an established custodial environment exists, a change can be made only on clear and convincing evidence that the change is in the best interest of the child.
Blaskowski v Blaskowski, 115 Mich App 1 (1982): The standard under which custody questions are decided is “the best interest of the child”. MCL section 722.27(a) Defines Established custodial environment.
Pierron v Pierron, 486 Mich 81 (2010): If no established custodial environment exists, custody may be decided upon showing by a preponderance of the evidence.
Jack v Jack, 239 Mich App 668 (2000): A temporary custody order does not create an established custodial environment.
Modification of Custody
Rossow v Aranda, Court must find that the petitioner has carried the initial burden of establishing that there is proper cause or a change in circumstances to modify an existing Michigan child custody order.
Meyer v Meyer, 153 Mich App 419 (1986), a change in a custody order is appropriate at the time the court determines that a modification is in the child’s best interest.
Amount of child support
Calley v Calley, 197 Mich App 380 (1992) There is a rebuttable presumption in favor of setting support at the level recommended by the Michigan Child Support Formula.
Nelis v Nelis, 211 Mich App 226 (1995) A Michigan court must order child support in an amount determined by applying the Michigan child support formula manual or may enter a child support order that deviates from the formula if the application of the formula would be unjust or unfair.
Good v Armstrong, 218 Mich App 1 (1996) In determining the level of child support, the court is not limited to the payer’s income. The court may also consider the payer’s financial situation.
Voluntary reduction of income
Rohloff v Rohloff, 161 Mich App 766 (1987) When a party voluntarily reduces or eliminates income and the court concludes that the party has the ability to earn an income, the court can order Michigan child support based on the unexercised ability to earn income.
Olson v Olson, 189 Mich App 620 (1991) A court is not limited to a parent’s actual income in setting Michigan child support payments and may consider an unexercised ability to earn income.
Child support modification
Good v Armstrong, 218 Mich App 1 (1996) Modification is within the sound discretion of the trial court upon showing of a change in circumstances justifying Michigan child support modification.
By: Daniel Findling
The Divorce Guy, Michigan Divorce Attorneys and Specialists