An introduction to custody

Custody defines the parent’s respective responsiblities relating to their child. Under Michigan law, there are two types of custody, legal custody, which is defined by statute and physical custody which is defined by case law.


Legal custody describes how parents shall share decision-making authority as to important decisions affecting the welfare of a child such as choice of school, health care decisions and changing domicile (moving).  For example, the statute (MCL 722.26a) informs us that during the time a child resides with a parent, that parent has the right to decide all routine matters concerning the minor child.

In almost every custody case (except when parents can never cooperate or generally agree imporant decisions), their is an award of joint legal custody. As joint legal custodians, both parties are entitled to equal access to the educational, medical, religious, governmental, and other important records of the minor child. Each party will advise the other immediately of any serious illness, emergency school-related issue or any other significant event that might arise while the minor child is with him or her. Both parties will conduct themselves with the best interest of their minor children in mind.

If a dispute over an imporant decision arises, the parties can request a hearing to decide the issue.

An introduction to “physical” custody.

Physical custody refers to a child’s living arrangements. Historically, if a child spends the majority of time with one parent, that parent would be described as having “sole physical custody”. However, the Child Custody Act does not define “physical custody” or the often-used phrases “sole physical custody” and “primary physical custody.”

However, “physical custody” is defined under the Uniform Child–Custody Jurisdiction and Enforcement Act:

(n) “Physical custody” means the physical care and supervision of a child.

MCL 722.1102(n) – UCCJEA

The phrase “physical custody” is often replaced with simply “parenting time”, that is the time a child spends with each parent. Under Michgan Compiled Laws, Section 722.27a “It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” In addition, the parenting time statute instructs us that: “(3) A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health”. In disputed cases, MCL 722.27a(7) provides factors for the court to consider when awarding parenting time in accordance with the the best interest of the child (See MCL 722.23)

The Michigan Court of Appeals in Shade vs. Wright distinguished between custody and parenting time as follows:

Whereas the primary concern in child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child’s parents.

Shade, 291 Mich.App. at 28-29

An Introduction to custody – conclusion.

From a practical standpoint “custody” has two components First, legal custody, defining who is responsibile for major decisions affecting the child and second, parenting time, defining the frequency and duration a child spends with each parent. The term “physical custody” is not used very often anymore and has simply been replaced with “parenting time”.

For more information on child custody, or if you are seeking assisitance in managing your situation, let it be our privilege to help.


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