The phrase “physical custody” has a troubled history and future in Michigan. In fact, the “physical custody” is also viewed by many as politically incorrect. After all, who wants to think of a parent having physical custody of a child. The future of the phrase also seems at risk as many Michigan divorce and custody judgments simply don’t make an award of physical custody in Michigan.
What does “physical custody” in Michigan mean?
A google search of the definition of “physical” provides little help: “of or relating to the body as opposed to the mind”, “of or relating to things perceived through the senses” or a “rough activity”.
In the law, we look towards statutes and case law to provide a definition of legal terms.
Unfortunately, the Child Custody Act of 1970 does not provide a definition for physical custody in Michigan. MCL 722.26a provides authority for a court to award physical custody without defining the physical custody. In fact, I am not aware of a single Michigan divorce or custody case that provides a definition of physical custody in Michigan.
A car accident provides the answer and defines “physical custody” in Michigan
In 2013, the Michigan Supreme Court issued an opinion in an automobile accident case entitled Grange Ins. Co. of Michigan v. Lawrence. The Grange insurance company was denying insurance coverage to a minor child who was injured in an automobile accident. Michigan law provided that the insurance company would not have to provide insurance coverage to a child that did not live with the insured. The insurance company relied on a Michigan divorce judgment that awarded the spouse (who was not insured by Grange) “primary physical custody” of the minor child and denied coverage.
On appeal, the Michigan Supreme Court agreed with the insurance company and in the process defined physical custody in Michigan as follows:
“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.”
The injured child was denied insurance coverage and the divorce court’s finally got a definition of physical custody in Michigan: Physical custody defines where the child resides. (Oh, and for insurance purposes you can only reside in one place!)
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By: Daniel Findling