Can you agree on Custody?

While agreements on custody are usually “rubber stamped” and approved by the court, the court must make an independent determination that the agreement is in the best interest of the minor child. However, you can agree on parenting time. Let me explain.

In Michigan, a child custody determination is controlled by statute. Specifically, the child custody Act of 1979 (MCL 722.21) and the best interest of the child factors (MCL 722.23).

If you agree on custody, will it be enforced by a court?

The answer is not necessarily.

This question was recently discussed by the Michigan Court of Appeals in the case of Idyle v. Idyle, dated July 13, 2023. In the Idyle case, the parties reached an agreement on custody before the Friend of the Court had an opportunity to make a recommendation on custody or the the contested facts. The agreement awarded the mother “. . . primary legal and physical custody . . .”.

Shortly after reaching the agreement, the Friend of the Court issued a recommendation giving the father physical custody during the school year and the mother physical custody during the summer months. The Friend of the Court also recommended the parties share legal custody.

Not surprisingly, the father requested the court adopt the Friend of the Court recommendation and the mother objected to the recommendation. At the trial court level, the judge adopted and agreed with the recommendation of the Friend of the Court awarding the father physical custody during the school year and the mother physical custody during the summer months and the mother appealed.

On appeal the mother argued that the parties reached an agreement on custody prior to the Friend of the Court recommendation, and therefore, the agreement should be enforced.

The mother argued that the parties agreement on custody resolved the disagreements at issue and precluded the trial court from considering them asserting that the court committed clear legal error by failing to properly respect and evaluate the agreement.

The Michigan Court of Appeals disagreed:

Custody disputes ordinarily must be resolved by determining the best interests of the child under the 12 statutory factors in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001). Furthermore, our Supreme Court has explained that trial courts are required to “ensure that the resolution of any custody dispute is in the best interests of the child.” Harvey, 470 Mich at 192. Even if the parties have agreed to a custody arrangement, the trial court must “satisfy itself concerning the best interests of the children.” Id. at 192-193. Indeed, the child’s best interests are “paramount.” Id. Similarly, this Court has explained that “[t]he trial court cannot blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child.” Phillips, 241 Mich App at 21.

Madison Nicole Idyle (Duston) v. Mark Edward Idyle, Michigan Court of Appeals No. 364080

The difference between custody and parenting time.

The difference between “custody” and “parenting time” is complicated. In simple terms, lets defined custody as follows: “Which parent does the child spend the majority of time with” and define parenting time as: “The amount of time each parent spends with a child”. Therefore, if a child spends more than 182.5 days with a parent that parent has custody. However, if we are addressing parenting time, such as changing the days or making another change (e.g. number of overnights) that does not change custody, it is a change in parenting time.

The importance of this difference is Michigan law does allow parties to reach an agreement on parenting time. Specifically, MCL 722.27a(2) provides:

(2) If the parents of a child agree on parenting time terms, the court shall order the parenting time terms unless the court determines on the record by clear and convincing evidence that the parenting time terms are not in the best interests of the child.

MCL 722.27a(2) emphasis added

Can you reach an agreement on Custody? No, but you can agree on parenting time.

Therefore, under Michigan law, an agreement on parenting time is enforceable unless the court determines by clear and convincing evidence that it is not in the best interest of the minor child. Whereas, you cannot reach an agreement on custody without the court making an independent determiniation that the agreement is in the best interest of the minor child.

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