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Holiday Gatherings and Family Disputes

Posted by Christina M. Lejkowski | Dec 17, 2021 | 0 Comments

Although the holiday season brings happy memories and cheerful thoughts to many people, for some it is a stressful time and fighting increases. Family disputes sometimes occur and often strong discussions take place regarding relationship status, living arrangements, and what is best for the children.  Clients wonder how to initiate a divorce in Michigan and how that process will affect their children. Unless you are in a toxic situation, you may want to delay filing for divorce until after the holidays. Enduring the divorce process during an already conflict-heavy season will only make the proceedings more contentious.

Filing For Divorce in Michigan

To initiate a divorce in Michigan, you must be a resident of Michigan for at least 180 days and a resident of the County in which you are filing for divorce for a minimum of 10 days.

To initiate a divorce, you should hire a skilled divorce attorney to file the required documents with the court and properly provide a copy of the documents to your spouse.  Once your spouse properly receives a copy, he or she must file his or her own documents with the court and should have his or her own attorney.

After the initial paperwork is properly filed, the court will set a schedule of dates for the parties to follow throughout the divorce process.

The Divorce Proceedings Will Determine Many Details 

The soonest a divorce can be granted after filing is 60 days for couples without minor children and 180 days for couples with minor children.  Michigan is a no-fault divorce state, which means that no blame to either party is required in order to file for a divorce.

Before a divorce can be finalized, the marital property, investments, and retirement accounts of the parties must be identified and allocated.  A party may also request alimony from the other person.   

What is the Friend of The Court? 

If the couple has minor children, custody and parenting time and holiday schedules must be agreed upon before a divorce can be finalized. The Friend of the Court will be involved in the divorce process, unless you and your spouse meet the statutory prerequisites and opt out. Opting out of the Friend of the Court is not a great idea for most couples.

The Friend of the Court helps parents with issues involving custody, parenting time and support payments.  The Friend of the Court can assist parents to review, modify, or enforce custody, parenting time and support payments.  The Friend of the Court also offers mediation services to parents. If an eligible couple chooses to opt out of the Friend of the Court, the Friend of the Court will not be involved in any custody, parenting time or child support issues that may arise.  This means that for example, if one spouse stops paying child support, the Friend of the Court will not be involved in assisting the other parent to collect the past due child support.

How Is Custody Determined? 

Custody of a minor child is divided into two categories – legal custody and physical custody.  Legal Custody is the right to make major decisions about a child; including schooling and medical decisions.  Parents can share joint legal custody or either parent can be awarded primary legal custody.  When parents are awarded joint legal custody, they are required to make major decisions together regarding their minor child.  Common major decisions include whether the child will be able to participate in travel sports and whether a child will receive orthodontic treatment such as braces.

Physical custody relates to the day-to-day decisions parents make about their child.  Parents can be awarded joint physical custody or either parent can be awarded primary physical custody with the other parent being awarded parenting time with the child.

Custody can be agreed to by the parties, without significant court involvement.  If the parents cannot agree, the court will determine custody based on the best interests of the child.  The law presumes that it is in the best interest of the child to have both parents in the child's life.

The best interest factors which the court will consider, include: 

  • love and affection between the parents and the child 
  • ability of the parents to guide the child in education and religion 
  • ability of the parents to provide the child with food, clothing, medical care and other needs 
  • length of time the child has lived in a stable environment 
  • the likelihood of permanency for the child as a family unit 
  • morality of the parents 
  • mental and physical health of the parents 
  • the child's home, school and community records 
  • if the child is old enough, the court may consider his or her reasonable preference 
  • each parent's willingness and ability to encourage a close relationship with the other parent 
  • whether the child has been exposed to domestic violence 
  • any other relevant factor

The court will review the best interest factors relative to the facts of the case and determine whether each factor weighs more in favor of one parent or is to be weighed equally to both parents.  After all of the factors are weighed by the court, a determination will be made regarding the best interest of the child, custody and parenting time with each parent.

Parenting Time and Holiday Schedules Are Usually a Major Point of Disagreement 

A custody and parenting time schedule will include where the child spends his or her time throughout the school year and the summer.  An important thing that many parents overlook when creating a parenting time schedule is cottages and summer camps.  Often parents like to take their children to a family cottage and do so every year when they are together.  After they break up, it is not so easy sometimes.  The parents should agree, in writing, about whether a minor child can go to a cottage up north during a school break or whether a child will be allowed to go to the same summer camp he or she is used to going.

A custody and parenting time order will also refer to the 100-mile rule and the Hague Convention.  The 100-mile rule does not allow either parent to move 100 miles or more from the other parent without court permission.  Also, parents are not allowed to take the minor child to a country which is not covered by the Hague Convention without court permission.

Over time, a custody and parenting time schedule can lose its effectiveness.  A common example is when parents share joint physical custody with equal parenting time and the minor child spends one week at one parent's home and the next week at the other parent's home throughout the year.  Although this seems fair and reasonable, as a child gets older, this may not work as well as it once did.

Children often like to participate in after school activities and weekend sports tournaments.  Some parents are willing and able to accommodate the child's participation in these activities, other parents are not able because of work or other commitments.  When a parenting time schedule is no longer effective, the parties can agree to a new schedule or the court can address their concerns.  Again, the best interests of the child will control the determination about whether a new parenting time schedule is appropriate.

Summary of Next Steps if you are considering a divorce or have a custody issue: 

Contact Great Lakes Family Probate & Estates to discuss your options regarding divorce, custody, and parenting time.  Call or click today for a free consultation with a GLFPE attorney at 1-888-554-5373, [email protected]. 

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