Custody / Parenting Time

Child custody cases can become very emotional, lengthy, and costly.  Clients are encouraged to make every attempt to resolve child custody issues outside of court. Michigan has very specific guidelines for resolving custody disputes if the parents cannot do it.  The most important concern is to keep the children from being in the middle. Children to do not like or want to decide who they will live with.  Michigan law however does allow a child of sufficient maturity to express their preference.  After the age of 18 the child is considered an adult and custody is no longer an issue. 

In Michigan custody is divided into legal custody and physical custody.  All cases involve deciding both legal and physical custody.   Legal custody means that the parents have the right to make major decisions affecting the welfare of the child including education, medical care and so on.  Joint legal custody also restricts the ability of one parent to move a significant distance from the other.  Michigan law favors joint legal custody and joint legal custody is the rule rather than the exception.  However, joint legal custody is normally not allowed or favored where the parents cannot cooperate or communicate with each other or generally are unable to agree on life issues.  The benefit of joint legal custody is that parents play an active and equal role in the everyday life of the child thereby empowering both parents while encouraging an ongoing relationship between the child and both parents and avoiding the stigma of an absentee parent. 

Physical custody on the other hand involves which parent the child will physically live with.  It cannot be emphasized enough that each divorce case is unique and there is no set formula to decide which parent should have physical custody.  Nevertheless Michigan law sets forth twelve factors that the court must follow in deciding custody:

• 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 to continue 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 homes.
  
• 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 considers the child to be of sufficient age to express preference.
  
• 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.
  
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  
• Any other factor considered by the court to be relevant to a particular child custody dispute.

The parent who prevails by a single factor will generally be awarded sole physical custody.  There are cases however where joint physical custody is allowed where the child may, for example, split the week between two homes, or alternate weeks or during the school year with one parent and during the summer with the other.   The possibilities are exhaustive depending upon the needs of the child and parents’ schedules.  Joint physical custody is most effective if the parents reside in the same school district and are geographically close.  Otherwise the distance between the parents' homes becomes an impediment to transport and can interfere with the child’s school and extracurricular activities.
In order of priority, child custody issues should be resolved by:

1. The parents with no child involvement.
2. The parties counsel.
3. A mediator/arbitrator with the assistance of counsel.
4. The Friend of the Court family mediation/counseling services with assistance of counsel.
5. The Friend of the Court report and recommendation and, finally;
6. By the Judge.

In most courts the judge will require the parties to exhaust steps 1-5 or a combination thereof before making a custody decision.  Also, the judge often requires psychological investigative reports on the parties and the children before the case is heard.