July 22, 2014

Best interest of the child in Michigan

The best interest of the child factors are 12 factors defined by the legislature that the court must consider when deciding cases involving child custody, parenting time, choice of school and guardianship cases.  We invite you to explore our knowledge base.

Best Interest of the Child Resources

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The Basics – Best Interest of the Child explained.

The goal of the best interest of the child factors is to determine 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 12 factors (identified as factors a thru l) which are formally set forth in Michigan Compiled Laws section 722.23.

The statute provides a court with specific considerations of what is in a child’s best interest with a catch all provision. Specifically, factor (l) which provides a court to consider “any other factor considered by the court to be relevant to a particular child custody dispute.

The 12 best interest of the child factors 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;

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her 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; and

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

The Details – Best interest of the child.

Michigan law requires that a court consider and sum each factor, however each factor need not be given equal weight. For example, consider a case where the majority of the best interest factors favor one parent and only one factor favor the other parent. If the one factor is very important it may outweigh the sum total of the other factors.

If there is one factor that is typically paramount it is factor factor (j) which is 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. If parents are unable to co-parent a court is often compelled to protect the child to the detriment of a parent.

Sample best interest of the child questions.

In applying the best interest of the child factors, lawyers will conduct discovery (ask questions) relating to the 12 best interest of the child factors. While every case is unique, you will find sample questions typically asked in evaluating the best interest of the child factors.

(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;

  • 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 spouse 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?

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her 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?

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

  • 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? Your spouse?
  • What does [name of child] eat for breakfast, lunch and Dinner?
  • Who arranges for the child’s doctor?  Who attends the appointments?
  • Does either parent deny medical care?
  • What are the names of the [name of child] doctors?  Dentist?
  • Who arranges for the babysitter?

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

  • 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?

(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?

(f) The moral fitness of the parties involved;

  • 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?

(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?
  • What medications do you take?

(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?

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

  • 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?

(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;

  • 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?

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

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

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

The Law – Best interest of the child in Michigan.

While the best interest of the child factors remain the same, the application of the factors may change depending upon the type of case. For example, in a choice of school case, the application of the best interest of the child factors will be narrowly tailored to the issue of choice of school.

A. Child custody cases and best interest of the child. (video and additional resources)

The requirement to consider the best interest of the child in a child custody case can be found in MCL 722.25 which sets forth that the best interest of the child controls in custody disputes and we have dedicated an entire page on Child Custody cases which can be found here.

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).

B. Parenting time cases and best interest of the child. (video and additional resources)

The application of the best interest factors in a parenting time dispute is set forth in MCL 722.27a which provides that parenting time shall be granted in accordance with the best interest of the child.

C. Choice of School cases and best interest of the child. (additional resources)

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.

Articles – Best Interest of the Child.

How a shoplifter avoided a change of custody.

What is really in your child’s best interest?

Best interest of the child – The case of a stripper and the National Guard.

Is securing vaccination in a child’s best interest?

A failed challenge to an expert Child custody and parenting time evaluation

Additional Resources

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By:  Daniel Findling (2014) (updated: 2019)

The Divorce Guy, Michigan Divorce Attorneys and Specialists

www.thedivorceguy.com

www.divorceforum.com

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