Custody / Parenting Time

Frequently Asked Questions

If I move out of the house before or during my divorce will this affect my custody claim?
Yes.  If you establish a separate residence leaving the children with your spouse, there is an inference that your spouse is now the sole custodian of the children and that your spouse is the more fit and proper parent to continue to have the children in an established custodial environment.

Can I date while going through a custody case?
Yes, but you should not since it adds an element of anger on the part of your spouse and would become a disincentive for compromise.  Also the court will not look favorably on your complicating the children’s live by introducing your new companion while they try to adjust to the divorce.

Should I file first? 
Generally yes since the party who files first gets to lay the groundwork for temporary court orders relating to marital expenses, temporary custody, injunctive orders and a like.  This could be a distinct tactical advantage.  

Once custody is decided can I later petition the court to change it?
Yes but be warned that the courts have made it difficult to modify existing custodial arrangements.  The party seeking to change custody must prove to the court by a preponderance of evidence that there has been a sufficient change of circumstances or proper cause to do so and that modification is in the best interest of the child utilizing the 11 factors.  Modification of custody is a serious step that should not be taken lightly unless there exists good and sufficient grounds to justify it. 

Can my child make up his own mind who to live with?
No.  Until the child is 18 he/she is always subject to the ultimate decision of the court.  However, Michigan law does allow a child of sufficient age and maturity to express his or her reasonable preference.  In actual practice children under 12 will have little say in the matter.  The closer the child is to 18 the more weight the child’s expression of preference carries.   As long as the child is not expressing a preference in order to manipulate the parents against each other, their choice is respected by the court. 

My spouse who has physical custody wants to move to another state.  What can I do?
Michigan law provides that a party with physical custody may not change the child’s legal residence without obtaining permission of the court first.  The parent must prove to the court that the change will likely improve the generally quality of life for the custodial parent and child including examining the motives of the custodial parent in seeking to move including desire to defeat or frustrate parenting time by the non-custodial parent.  In effect the court must be satisfied that there will be a realistic opportunity for parenting time with the non-custodial parent and that the move will be in the best interest of the child. 
Also in cases of joint legal custody, under a 2001 Michigan law one parent may not change legal residence of more than 100 miles from legal residence at the time the case was filed unless the moving party can prove the factors mentioned above. 

My ex-spouse has prevented me from having parenting time with my child.
The Michigan Child Custody Act creates a presumption that it is in the best interest of the child to have a very strong relationship with both parents.  Accordingly, violations of parenting time schedules are not well tolerated.  In some cases the courts have even suspended the child support obligation of the parent who has been denied parenting time.  Most parenting time violations are heard by and through the county Friend of the Court.  Modification of parenting time can be sought at anytime prior to the child’s 18th birthday.  In 1983 Michigan passed a law providing for felony kidnapping or misdemeanor charges against a biological or adopted parent who retains a child in an effort to keep the child from the other parent and making the removal and/or detention of such child either within or outside the State of Michigan for longer than 24 hours as a felony punishable by one year in jail and a fine of up to $2,000.00 or both.   Further, parents seeking passports of minor children under age of 14 must have both parents appear to apply or one parent must appear and submit the other parents notarized statement of consent authorizing passport issuance for the child or in the alternative one parent must appear and submit legal evidence of sole authority to apply.  The passport rules can be found at http://travel.state.gov/passport/passport_1738.html.

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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.