Child custody in Michigan
If you have children and you are going through a divorce or custody case then child custody in Michigan is topic that is likely be the most important to you.
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Custody in Michigan explained
The law regarding child custody in Michigan requires the divorce and custody courts strive to encourage a close relationship between both parents and the children. This broad requirement is subject to broad interpretation and is the basis for every custody battle. However, not every child custody case in Michigan has to be a battle. In fact, most cases are resolved by agreement. In other cases, custody in Michigan is decided by the courts.
Legal and Physical Custody in Michigan
There are two types of custody in Michigan that must be understood legal custody and physical custody.
- Legal custody is best described as who makes major “legal” decisions. If one parent makes the major decision regarding the children he/she is awarded sole legal custody. If both parents make the major decisions regarding the children they are awarded joint legal custody.
These major decisions include:
- the right to make legal decisions for the child(ren);
- the child(ren)’s choice of school;
- Health care decisions;
- and decisions regarding the general welfare of the child(ren).
Most parents are awarded “Joint legal” custody in Michigan”. Which means the parties shall be entitled to equal access to the educational, medical, religious and other pertinent records of the children. The parties shall jointly determine the necessity of elective medical care of a major nature and shall make joint decisions on the religious and educational upbringing of the children. The parties shall each be entitled to be informed of all parent/teacher conferences and any and all other activities (including sports) and/or school programs in which the children and parents are invited to attend. The parties shall each be entitled to receive copies of the children’s report cards, medical records and current photographs.
Decisions which affect the day-to-day care of the minor children shall be made by the physical custodian.
- Physical custody traditionally defined where the child lives on a day-to-day basis. If a parent is awarded sole physical custody the child(ren) would spend the majority of time with that parent. If the parents are awarded joint physical custody, parenting time was traditionally close to equal parenting time when custody in Michigan is at issue.
“Custody” traditionally identified the parent charged with “control” over the day to day decisions regarding raising a child.
Key learning: What happened to physical custody in Michigan?
Michigan court’s are moving away from the use of the phrase “physical custody” and replacing it with more politically correct language such as “custodial parent”. Therefore, it is not uncommon to see an award of joint physical custody in Michigan with one parent being the “primary” or “custodial” parent. The use of “primary” or “custodial” has the same meaning as “physical custody”.
Parenting time and visitation
Custody in Michigan always involves an award of parenting time. While custody in Michigan describes who is responsible for the day-to-day concerns of the child, parenting time describes the frequency a parent spends with a child. Parenting time means the same as visitation. Custody in Michigan and Parenting in Michigan are similar, however, the law is different. It is rare, but not impossible for a parent to be awarded sole physical custody in Michigan while the other parent spends the majority of time with the kids.
Modification of child custody in Michigan
Custody in Michigan (modification): When fighting over custody in Michigan a court follows 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 or modify custody in Michigan, 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 in Michigan unless there is a very good reason.
The initial burden prevents many attempts to modify custody in Michigan and prevents frequent modification of custody in Michigan.
Fighting for custody in Michigan
The first step in fighting for custody in Michigan is determining if there is an established custodial environment with one parent or both parents. An established custodial environment is defined 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 when reviewing custody in Michigan. After determining if an established custodial environment exists, the courts will look at the best interest of the child(ren).
The second step for fighting for custody 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. Cases involving child custody in Michigan require 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.
Child custody in Michigan evaluations – Friend of the Court or Psychologist?
Fighting for custody in Michigan be complicated, stressful, expensive and complex. In addition to the Friend of the Court, a custody fight may also include the use of an independent child custody evaluation to help support a claim for custody in Michigan. While most child custody evaluations are accomplished with the assistance of the Friend of the Court, courts and clients often utilize an independent clinical or forensic psychologist to conduct a child custody evaluation, typically, a PhD.
Unlike the Friend of the Court, which does not perform any objective testing, an independent clinical or forensic psychologist performs psychological testing in support of their findings on custody in Michigan.
However, because custody evaluations can be costly, time consuming and stressful, they are primarily used in cases where serious concerns are raised concerning parental fitness or in contested custody in Michigan cases.
It is important to note that there are no psychological tests that can accurately determine if a particular custody or parenting time arrangement is in the best interest of a child. Rather, psychological testing can help in the formation of a best interest of the child opinion when fighting for custody in Michigan. (http://www.thedivorceguy.com/a-child-custody-evaluation-are-you-ready-to-take-the-test/)
Court’s also may use the Friend of the Court to help examine the 12 child custody factors when evaluating custody in Michigan. The Friend of the Court will make recommendations regarding custody in Michigan 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 in Michigan examination questions (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. a. 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. b. 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. c. 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. d. 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. e. 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. f. 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. g. 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. h. 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. i. 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. j. 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. k. 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?
Custody in Michigan – 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
- When is custody in Michigan decided? Custody in Michigan can be decided on a temporary basis early on in a case. A final custody determination does not occur until after the parties agree and the court approves the agreement or there is a hearing on the issue. The Friend of the Court, your attorney and the Judge all work towards reaching an agreement, or if an agreement is not possible, a hearing will be held on the issue.
- 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.
- If I have more parenting time or custody, will I receive child support? As a general rule, the parent with the most overnights receives child support. Child support is also based on the income of the parties along with the costs of daycare and healthcare expenses. The Michigan Child Support Formula Manual is utilized to determine the amount of child support paid and received by parties.
- My spouse wants to move out of State with the kids, can she? While a vacation away from home with your kids is generally a non-event, Michigan law specifically prohibits moving with your children outside of the State of Michigan. In fact, moving more than 100 radial miles from your current residence is prohibited without permission from the other parent and the court. This rule is called the 100 mile rule. If approval from the other parent is not possible, a court will schedule a hearing on the issue. The hearing to seek permission to move out of State is called a change of domicile. Michigan has a statute on changing a child’s legal residence, which is also called a domicile. The statute is MCL 722.31. We have created a video with instructions on changing domicile. http://www.thedivorceguy.com/moving-with-children-changing-domicile/
- What is parental kidnapping? Parental kidnapping is a crime. Specifically, if a parent takes a child for more than 24 hours with the intention to conceal or detain the child, it is felony. There is a Federal Statute on point called the Parental Kidnapping Prevention Act and Michigan has its own statute contained in Michigan compiled laws section 750.305a. The Statute can be viewed by visiting the following link: http://www.legislature.mi.gov/(S(2j0dxxr0b5h0202iuyfjmlet))/mileg.aspx?page=GetObject&objectname=mcl-750-350a
- 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. For more information on this subject visit: http://www.thedivorceguy.com/michigan-child-custody-law-can-child-choose/ and http://www.thedivorceguy.com/michigan-child-custody-law-can-child-choose/
- How do I modify an order of custody in Michigan? An order of custody in Michigan 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 regarding custody in Michigan.
- 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), parents awarded joint legal custody in Michigan share decision-making authority. Joint legal custody in Michigan means all important decisions affecting the welfare of the child are shared. When the parents cannot agree on an important decision in a Michigan custody case, 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.
- Can a parent change the child’s name without court permission? While Michigan common law may allow a parent to change a child’s last name. I would not recommend doing so without court permission as Michigan statutory law requires all interested parties to be notified before doing so along with approval from a the court.
- Do Court’s favor mothers over fathers? Technically, no. The law is written in a gender neutral way. The child custody act presumes it is in the best interest of both parents to maintain a relationship with the child. However, judges are human beings with their own personal bias, so experience in the court you are dealing with is important to better answer the question. Different counties also have different institutional bias.
- What about grandparent parenting time? There is no inherent right to Grandparent parenting time. Michigan law recognizes that parents have a constitutionally protected status of the natural parent-child relationship, in short a fundamental right to parent. Grandparents do not have the same fundamental right to their grandchildren. Therefore, it is very difficult to award grandparent visitation or parenting time without a natural parents consent. In certain circumstances, with a showing of substantial harm to the child, or if a parent has died, grandparents can be awarded parenting time. The Michigan grandparent parenting time statute can be viewed in its entirety here: http://www.legislature.mi.gov/(S(ojqs0irjtkkkffmwwyxynbvi))/mileg.aspx?page=getobject&objectname=mcl-722-27b
- How do you modify a custody order? 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. This is accomplished by filing a motion with the court. If you are successful with the initial burden, the court will schedule a best interest hearing.
- What is an Ex Parte Custody Order? An Ex Parte Custody Order is a temporary order entered without a hearing. If a party objects to the the temporary order the court will schedule a hearing on the issue. The party seeking to get an order signed without a hearing must allege sufficient facts to support the necessity for the order before a hearing. Typically, ex parte custody orders are to address an emergency situation.
Articles on Custody in Michigan
- How to change custody in Michigan
- Physical custody in Michigan
- Joint legal custody in Michigan
- The moral fitness of the parties
- Child custody laws in Michigan
- Parenting time guidelines and directives
- The relationship between custody and child support
- Michigan legal custody – what to do when you cannot agree?
- Custody Modification – How to modify a child custody award.
- Child Custody evaluations
- Parental Kidnapping
- Custody Modification
- Veterans benefits
- Can a child choose who to live with?
- The Fundamental Right to parent
- Michigan Legal Custody – What to do when you cannot agree?
- Physical custody in Michigan
- Do not make it the kids fault
- Holiday Parenting time in Michigan
- Birthday parenting time
- Best interest of the child factor (a)
- Best interest of the child factor (b)
- Best interest of the child factor (c)
- Best interest of the child factor (d)
- Best interest of the child factor (e)
- Best interest of the child factor (f)
- Best interest of the child factor (g)
- Parenting time bracket
If the parties can agree on a custodial arrangement, the court, under most circumstances, will adopt the agreement. If you cannot agree, your Michigan Attorney will argue, and the Court will make a decision based on the Michigan Child Custody Act which governs child custody in Michigan.
The Law – Custody in Michigan
MCL section 722.21: Custody in Michigan statute
Section 11 of the Child Custody Act of 1979
Statutory parental presumption for custody in Michigan
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.
Custody in Michigan and the Uniform child custody Jurisdiction and Enforcement Act
(UCCJEA): governs interstate custody disputes
Established Custodial Environment and custody in Michigan
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 in Michigan
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.
Proper cause and change in circumstances for changing custody in Michigan
Killingbeck v. Killingbeck (2005) 711 N.W.2d 759, 269 Mich.App. 132, Not just any change will suffice to establish a change in circumstances; the evidence must demonstrate something more than the normal life changes (both good or bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.
Thompson v. Thompson (2004) 683 N.W.2d 250, 261 Mich.App. 353, Trial court was not required to determine proper cause or change in circumstances when it modified a temporary custody order.
Vodvarka v. Grasmeyer (2003) 675 N.W.2d 847, 259 Mich.App. 499., To establish a “change of circumstances,” under Child Custody Act provision requiring party seeking change in custody to first establish proper cause or change of circumstances, a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed; the evidence must demonstrate something more than the normal life changes, both good and bad, that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. Vodvarka v. Grasmeyer (2003) 675 N.W.2d 847, 259 Mich.App. 499. Child Custody 555
By: Daniel Findling
The Divorce Guy, Michigan Divorce Attorneys and Specialists