Child custody is a complex topic that the Court takes very seriously. This is one of the most contested issues in family law when parents cannot agree on custody of their minor children. It is important for parents to know that the Court doesn't make decisions based on what is most convenient or preferred by either parent but by whether the custody arrangement is in the child's best interest. The following are explanations of legal terms and a guide for you about the legal process the Court goes through in determining custody of minor children.
Child custody breaks down into two categories. The first is legal custody and the second is physical custody. Legal custody pertains to important decisions regarding the child. This includes medical, religious, and educational decisions as well as access to school and medical records. Physical custody determines where the child resides and who is responsible to care for the child. This can be important for determining where the child will attend school or also determining how far a parent may be able to relocate. We will discuss more on the topic of the “100 Mile Rule” and change of domicile in more detail in another blog. But this is where physical custody comes into play.
Legal and Physical Custody can be given solely or jointly. Sole legal custody means that only one parent is making the important decisions in the child's life. The main areas are school, medical care, and religion. Joint legal custody is where both parents have input and need to agree on those important decisions. Sole physical custody means that the child lives with one parent the majority of the time and usually has some parenting time with the other parent. Joint physical custody is generally equal parenting time. One common misconception is that if you have sole custody of either legal or physical custody, they must have sole in the other. This is untrue. For example, the Court may decide that one parent should have sole physical custody, but both parents should have joint legal custody.
The Court heavily favors joint custody unless a there are severe concerns about the parent's decision-making ability or their ability to take care of the child. This includes concerns regarding alcoholism, drug use, mental health issues, or physical or mental abuse.
Once custody is determined by the Court, then a parenting time schedule needs to be decided. It is always better if parents can agree to a schedule that is in their minor child's best interest but if that is not possible then the Court will make that determination. Generally, the Court refers these issues to the Friend of the Court first. The Friend of the Court will make a recommendation and if neither party objects then the Judge will issue an Order. When the Court determines parenting time and it is in an Order signed by the Judge the parents must follow the schedule. Judges do not like it when parents do not follow an Order and there can be some very serious consequences if it is not followed. Parenting time pertains to the number of overnights each parent has every week. There are a few schedules that the Court usually follows. The Court usually prefers that the parents have equal parenting time and they want a consistent schedule for the minor children to avoid confusion and disruption for the children. Common schedules are week on/week off and a 2/2/3 schedule – meaning for example one parent has Monday and Tuesday, the other parent has Wednesday and Thursday and then the parents alternate weekends.
Holiday parenting time is another part of the yearly parenting time schedule. Each county typically has their own holiday schedule which parents can agree to use, or the Court will order the parents to abide by. The holiday schedule supersedes the typical parenting time schedule. For example, one parent has parenting time on Wednesday but the other has parenting time on Christmas. If Christmas is on Wednesday, the second parent would have the child. After the holiday parenting time is over the regular schedule resumes.
If one parent decides that they would like to make changes to Custody or Parenting Time, they must file a motion with the Court. The Court sets a very high bar to modifying custody. The standard that the moving party must met under MCL 722.27(1)(c) is “proper cause shown or because of change of circumstances.” Normal life changes do not equate to “proper cause shown or change of circumstances.” This is the first hurdle you must overcome in order for the Court to even consider a change of custody or parenting time. Some examples of “proper cause or change of circumstances” would be a parent's arrest or criminal charges, substance abuse, neglect, domestic violence, or a dangerous change in the home environment. Once the Court determines that there is “proper cause or change of circumstances” then an evidentiary hearing will be scheduled so the Court can make determinations on the established custodial environment (ECE) and the best interest factors.
The custodial environment of a child is established under MCL § 722.27(1)(c) if “over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.”
Many parents believe that the child can only have an established custodial environment with one parent. If the child looks to both parents for guidance, discipline, necessities, and comfort, then the child has an established custodial environment with both parents. Many times the Court determines that the ECE is with both parents.
The Courts often disfavor changing the child's environment. Typically, the child has established a routine and a sense of safety from that routine. However, there are often situations that warrant a change in custody. In these circumstances, the Court looks to whether a modification of custody is in the child's best interest. The court has a variety of factors to analyze in order to determine the best interest of the child. The Court will determine if the factor favors one parents, both parents, or neither parent. Under MCL § 722.23 the Court considers the following 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 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 care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Generally, the evidentiary hearing is held by The Friend of the Court Referee. The hearing will be scheduled and depending on what County it is in it may be a formal or informal hearing. Recently, after a Court of Appeals decision came out the Courts are now routinely interviewing the minor children to find out their preferences after the evidentiary hearing or investigation is complete. Once the Friend of the Court obtains all of the information needed to analyze the factors, they will make a recommendation. If you disagree with the recommendation, you may object. If there are no objections, there will be a Court Order adopting the report. If there is an objection, you and your attorney will be brought in front of the Judge for them to make a final decision.
Having a family law attorney who understands the law and the Court systems to help you navigate custody or change in custody is vital. Child custody is a complex topic that is difficult to navigate on your own and too important to your child's future to take any chances. If you are in need of representation, please contact Great Lakes Family Probate & Estates at (888) 554-5373.
