Potentially one of the most contentious issues in divorce is custody of the children. Courts encourage a close relationship between both parents and the child(ren). If the parties can agree on a custodial arrangement, the court, under most circumstances, will adopt the agreement. 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.
- 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).
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.
Both parents are obligated to support a child regardless of the parent’s financial situation. Child support is typically paid to the parent with physical custody and the amount of child support is related to the parties’ respective incomes.
If the parties have joint physical custody, the number of overnights the child(ren) spend with each parent is also important. 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 without physical custody 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.
Does joint physical Custody equate to less child support?
No, having Joint Physical Custody does not mean you pay or receive less child support. Michigan has adopted a Shared Economic Responsibility Formula (SERF). The SERF applies when each parent exercises at least 128 overnights with the minor child(ren) and can result in a significant reduction in a child support obligation or award regardless of who has physical custody. Therefore, having joint physical custody is different than how much time the child(ren) spends with each parent. The number of overnights is the determining factor in child support reduction.
There are many different variables to be taken into consideration, and it must be remembered that all situations are unique.
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.
If Child Support payments are not made, parenting time cannot 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.
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