On topic that seems to come up more than any is the notion of physical custody. Unlike legal custody, which awards a parent with access to the educational, medical, religious and other pertinent records of the child. Physical custody in Michigan is not easily defined.
In fact, the Michigan Child Custody Statute MCL 722.26a does not require a court to award physical custody. (See MCL 722.26a(3))
In 2013, the Michigan Supreme Court provided a definition of Physical Custody in a fight over insurance coverage in an automobile accident case. In the automobile accident case of Grange Ins. Co. of Michigan v. Lawrence the Michigan Supreme Court held: “Physical custody pertains to where the child shall physically “reside” whereas legal custody is understood to mean decision-making authority as to important decisions affecting the child’s welfare.”
From a practical standpoint, physical custody in Michigan is generally defined as where a child lives on a day to day basis. If a child spends the majority of the time with one parent, traditionally, that parent was awarded sole physical custody in Michigan and the other parent was awarded parenting time.
However, in recent years, Michigan courts have almost eliminated the terminology physical custody and replaced it with more politically correct language such as the “primary custodial parent.” From a practical standpoint, the language is just sugar coating. The “primary custodial parent” is code for “sole physical custody” or more simply, the parent awarded the majority of parenting time.
Although sole physical custody in Michigan was once the norm, as discussed above, courts now seem to favor the label “joint physical custody”. Notwithstanding, Michigan law provides that if parents cannot agree on essential decisions, sole custody should be awarded. Fisher v. Fisher 118 Mich App. 227 (1982).
As a result of the change in the use of the phrase physical custody, more time is spent on parenting time than custody when resolving a Michigan child custody dispute. The parent awarded the majority of parenting time, is awarded (in theory) “sole physical custody” without ever using the words.
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By: Daniel Findling