Interests of the Child"
Child Custody. The issue of who will be the
custodial parent after a divorce or parentage action can be very emotional and
traumatic for the parents. This is truly unfortunate since most of these parents
will be co-parenting for many years to come. I've heard judges say that the best
decision about custody is usually made by the parties and that leaving the
decision to a judge who has little knowledge of the family dynamics is a bad
idea. I could not agree more. Early mediation can help parents to make decisions
before they become polarized or feel backed into a corner that each needs to
There are really two components of custody. Legal custody determines which
parent shall make the major decisions for the child during the child's minority.
Physical custody determines who will be the predominant custodial of the child.
Legal custody. Where one parent shows little interest in the child, a
court might award sole legal custody to the other parent. An award of sole legal
custody occurs more frequently in a paternity case. This may have something to
do with the fact that the father may be unrepresented by counsel. Another
instance where sole legal custody might be awarded to only one parent is where
the parents have demonstrated no capacity for making joint decisions in a
civilized manner. But, generally, Michigan courts will award joint legal
custody. It's important to realize that every case is dependent upon it's
particular facts. It is the unique facts relating to a family that may warrant a
deviation from the normal situation, where both parents have joint legal
Physical custody. Physical custody usually means that one parent will be
the primary physical custodial of the child or children. However, joint physical
custody is possible, particularly where both parents are highly invested in
their children's lives. More and more, I'm seeing the use of the term "shared
care arrangement." And, in fact, the terms "joint custody" and "shared care
arrangement" can really mean anything that the parties intend them to mean.
Sometimes, these terms can help to resolve custody disputes simply by not making
one parent feel inferior to the other.
How a court determines who will have custody if the parties cannot agree. If the
parties are unable to agree on which shall have custody or whether they can or
will share custody, the court is bound to decide the issue using the Michigan
Child Custody Act, specifically that section that defines "the best interests of
the child." Each case is highly dependent upon its specific facts. If you have
questions about how the court might decide your case, call Jeanne Hannah to
schedule an appointment for a thorough discussion. First, complete the divorce
questionnaires, here. Then either call 231-275-5600 or email Jeanne Hannah at jeannemhannah [at] charter.net.
To schedule an initial meeting with child custody lawyer Jeanne Hannah or to ask
a question, call or send an e-mail today. Get started now! Complete the divorce
questionnaires Bring them with you or send them with your e-mail.
The "Best Interests of the Child"
under the Michigan Child Custody Act
you are involved in a child custody dispute, you should become familiar with the
Child Custody Act and study and be prepared to discuss the following factors:
The love, affection, and other emotional ties existing between the parties
involved and the child.
The capacity and disposition of the parties involved to give the child love,
affection, and guidance and continuation of the education and raising of the
child in his or her religion or creed, if any.
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.
The length of time the child has lived in a stable, satisfactory environment and
the desirability of maintaining continuity.
The permanence, as a family unit, of the existing or proposed custodial home or
The moral fitness of the parties involved.
The mental and physical health of the parties involved.
The home, school, and community record of the child.
The reasonable preference of the child, if the court deems the child to be of
sufficient age to express a preference.
The willingness and ability of each of the parents to facilitate and encourage a
close and continuing parent-child relationship between the child and the other
Domestic violence, whether or not it occurred in the child's presence.
Any other factor considered by the court to be relevant to a particular child
parents must be advised that they have a right to seek joint custody if they are
unable to agree. The statute says:
the request of either parent, the court shall consider an award of joint custody
and shall state why joint custody may or may not be considered by the court. The
court shall determine whether joint custody is in the best interest of the child
by considering the following factors:
The factors enumerated above.
b. Whether the parents will be able to cooperate and generally agree concerning
important decisions affecting the welfare of the child.
the parents agree on joint custody, the court shall award joint custody unless
the court determines on the record that clear and convincing evidence affecting
the welfare of the child dictates otherwise.
the court awards joint custody, the court may include in its award a statement
regarding when the child shall reside with each parent or may provide that
physical custody be shared by the parents in a manner to assure the child
continuing contact with both parents.
During the time the child resides with a parent, that parent shall decide all
routine matters concerning the child.
there is a dispute regarding residence, the court shall state on the record, in
writing, the basis for a residency award.
Joint custody shall not eliminate the responsibility for child support. Each
parent shall be responsible for child support based on the needs of the child
and the actual resources of each parent. If a parent would otherwise be unable
to maintain adequate housing for the child and the other parent has sufficient
resources, the court may order modified support payments for a portion of
housing expenses, even during a period when the child is not residing in the
home of the parent receiving support. An order of joint custody, in and of
itself, shall not constitute grounds for modifying a support order.
used in this section, "joint custody" means an order of the court in which one
or both of the following is specified:
That the child shall reside alternately for specific periods with each of the
b. That the parents shall share decision-making authority as to the important
decisions affecting the welfare of the child.
Parenting Time (Visitation). The noncustodial
parent is usually awarded parenting time. Although judgments and orders may
order general parenting time, leaving it up to the parties to decide the dates,
it's usually best to provide specific parenting time. Parents can always remain
flexible and change times if need be, but a parent is always able to enforce
specific parenting time through the courts if things go wrong. Usually, parents
make arrangements to share cost of transportation, particularly if long
distances are involved. Michigan law requires judgments of divorce to state that
the minor child may not be permanently removed from the jurisdiction of the
court without the court's approval. Then, if a custodial parent wants to move
from Michigan with the child, that parent is required to petition the court for
Parenting time orders may be modified if a parent can show a change in
circumstances. If a parent wrongfully denies parenting time, the law allow for
make up parenting time. Repeated denials can lead to a contempt of court action
against the offending parent, resulting in a fine or jail term. Illness of a
child or a parent's failure to pay child support are not acceptable reasons to
deny parenting time.
Model Parenting Plans.
Some States have developed Model Parenting Plans in an
effort to help parents work out the best possible
parenting time schedules for their children. These model
plans have been recommended by developers who are child
development specialists, lawyers and others who have had
valuable training, education, experience, and expertise
in what will work best for children when their specific
developmental stages are taken into consideration.
To look at some of those
Model Plans, see here:
Arizona Model Parenting Time Plan (One of the first,
this plan is particularly sensitive to the needs of
infants and toddlers.
Colorado Model Parenting Time Plan (Similar to
Ohio Model Parenting Time Plan
Washington State Parenting Time Plan. The State of
Washington requires parents to develop and submit their
own plans. If they are unable to do this without help,
the plan will be developed with the assistance of a
Alaska Model Parenting Time Plan
Modification of child custody orders. These order
are modifiable. However, parents who reside in Michigan must bear in mind that
the trial court will not exercise jurisdiction to modify the prior custody order
unless the parent seeking the modification can prove by a preponderance of the
evidence (i.e., by better than 50% of the evidence) that there is either a
substantial "change in circumstances" or substantial "good cause" that justifies
the court taking another look at the situation. These cases tend to be extremely
fact-driven. The particular facts of your case may compel the court to take
action. However, unless the changes are significant, and not just part of the
normal growing up of the child, the court doesn't have to conduct a hearing on a
motion to change custody. It would be a mistake for you to settle your custody
case believing that you have unlimited freedom to come back later to "fix
things." It's not easy to "fix" something that was done wrong earlier.
When deciding whether to modify an existing custody or parenting time order, the
court will consider how long the child has lived in a stable custodial
environment and what is in the best interest of the child. Many people believe
that when a child reaches a certain age -- usually 14 -- that the child gets to
choose which parent he or she wants to live with. This is a common
misconception. While it is certainly important, the child's preference is just
one of the factors to be considered in the 11 specific child custody factors