While you were married, you and your ex-spouse probably split childcare duties roughly 50/50. So naturally, you might assume that after a divorce, family courts will automatically award you 50/50 custody.
Unfortunately, that’s not how it works. While it’s true that courts will often give parents 50/50 custody, Michigan family court judges make decisions based on one guiding principle: the best interests of the child.
If you are divorcing or facing an upcoming custody hearing, it’s important to understand how this principle may apply to your situation.
Do Family Court Judges Prefer to Award 50/50 Custody?
If both parents are able to provide a stable and loving environment for their child, Michigan courts often prefer to award 50/50 custody. However, it would be a mistake to see 50/50 custody as the default.
When two main criteria apply, family courts may be more likely to grant 50/50 custody:
- Both parents are fit
- A 50/50 schedule is practical from a scheduling standpoint
Although 50/50 custody is possible and even likely in some cases, Michigan family courts aim to consider the best interests of the child above perceived fairness to parents when making custody decisions.
The Importance of the Child’s Best Interests: 12 Key Factors
In Michigan, family court judges are required to assess a certain set of factors when making child custody decisions. Notably, these factors don’t have to be weighted equally. They simply provide a framework for the court to decide what kind of custody placement would benefit the child most.
Here’s a look at the basics of each of the 12 “best interests of the child” factors:
1. Love, Affection, and Emotional Ties
In some cases, a child may have a stronger bond with one parent than the other. When assessing the child’s emotional ties with each parent, the court may ask questions like these:
- How much time does each parent spend with the child?
- Who does the child go to when they have a problem?
- How often does each parent bathe the child, make their meals, put them to bed, and handle other daily routines?
While assessing this factor, family courts will also try to gauge whether the parents are capable of separating the child’s needs from their own.
2. Capacity to Give the Child Love and Guidance
At first glance, this factor might look virtually identical to the first factor. However, while the love, affection, and emotional ties factor examines the child’s existing bond with each parent, this factor looks at each parent’s willingness and ability to effectively support and guide the child.
3. Capacity to Provide Food, Clothing, Medical Care, and Other Essentials
Before awarding 50/50 custody, family courts want to make sure that both parents are willing and able to provide their children with the essentials. They might consider factors like these:
- Which parent makes doctor’s appointments for the child?
- Who buys clothing, food, and toys for the child?
- Does either parent have job stability and/or flexible work hours?
- Can either parent provide health insurance for the child?
It’s important to note that this factor is not just about money. If one parent makes significantly more than the other, family courts will sometimes consider whether child support can help make things more equal.
4. How Long the Child Has Lived in a Stable Environment
Often, if a child has lived in a stable and supportive environment for an extended period of time, the court will hesitate to remove the child from that environment without good reason.
If both parents can provide a stable home environment, the court may be more likely to award 50/50 custody. However, if one parent’s home is unsafe, unstable, or both, the court may award custody to the stable parent while granting the other some amount of parenting time.
5. The Permanence of Each Parent’s Family Unit
The court will also look at each parent’s existing family unit. If one parent is in a volatile living situation, such as having multiple short-term relationships or roommates who quickly come and go, the court may decide that 50/50 custody isn’t in the child’s best interests.
6. Each Parent’s Moral Fitness
The term “moral fitness” is somewhat subjective, but in evaluating this factor, courts often ask questions such as:
- Has either parent been verbally, physically, or sexually abusive?
- Has either parent had an affair that the child was aware of?
- Does either parent abuse alcohol or drugs?
When determining whether issues like these will influence custody decisions, courts will generally assess how a parent’s behaviors have impacted their parenting skills. They also examine how a parent’s negative behaviors have affected the child.
7. Each Parent’s Mental and/or Physical Health
This factor doesn’t mean that a parent with a disability will automatically be considered unfit. Instead, the court looks at whether either parent suffers from a mental or physical health condition that significantly impacts their ability to care for a child.
8. The Child’s Home, School, and Community Records
Michigan family courts want to verify that custodial parents will support the child in all areas of life. When evaluating this factor, they may ask the following:
- Do both parents encourage and support school attendance?
- Will both parents ensure the child will still see and talk to their friends?
- Who currently supervises the child’s chores, homework, and other responsibilities?
The court might also consider which parent goes to the child’s extracurricular activities, school conferences, and other important events.
9. The Child’s Preference
Judges generally only take a child’s preference into account if they feel that the child is mature enough. To avoid the possibility of family conflict and ensure that the child’s expressed preference is genuine, Michigan family court judges typically don’t share the child’s preference with parents, siblings, lawyers, or anyone else.
10. Ability to Encourage the Child’s Close Relationship With the Other Parent
In most cases, family courts frown upon one parent disparaging the other in front of the child or otherwise sabotaging the child’s relationship with the other parent.
However, this factor has limitations. Under Michigan law, a family court judge may not penalize a parent for taking steps to protect themselves or their child from domestic violence or sexual assault committed by the other parent.
11. Any Domestic Violence
If one parent has committed domestic violence, that will likely work against them in custody decisions. This is true even if the domestic violence wasn’t directed against the child or witnessed by the child.
12. Any Other Factor the Judge Considers Relevant
Here are a few examples of other factors a judge might consider:
- Whether the child may be separated from siblings or stepsiblings
- Whether either parent has missed visits or failed to bring the child to custody exchanges
- Whether the child’s relationship with either parent’s new significant other affects their best interests
This is a kind of “catch-all” provision to allow family courts to take into account any other issues they consider relevant.
Situations Where a Court Might Not Award 50/50 Custody
Each family’s situation is unique. In many cases, when a family court judge decides against 50/50 custody, the decision comes down to a combination of factors.
However, these are a few common scenarios where a judge may be less likely to award 50/50 custody:
- The parents are unable to effectively communicate to make decisions about the child’s care
- The parents live very far apart, making it impractical for the child to travel between them
- The child has special needs that make frequent travel between homes impractical
- There is evidence that one parent has committed domestic violence
- There’s evidence that one parent abuses drugs or alcohol
- One parent is unable to offer a safe and stable home environment
- One parent has a very limited relationship with the child
- One parent is actively trying to sabotage the child’s relationship with the other
Even the child’s age can be reason enough for a judge to decide that 50/50 custody isn’t appropriate. For instance, infants and very young children typically need one primary caregiver, so a judge may give one parent primary custody.
Can the Court Award 50/50 Custody Later On?
If you were expecting 50/50 custody and ultimately received less parenting time than your ex-partner, the emotional impact can be devastating. However, the good news is that your current custody arrangement doesn’t have to be permanent.
If you want 50/50 custody but didn’t receive it, it’s a good idea to consult a family law attorney to help you formulate a plan. However, these general steps may help you start working toward it:
Learn the Reason Behind the Court’s Decision
When a Michigan family court judge makes a decision about child custody, they will usually include their reasoning in the court record. Obtaining your court record is a key first step. When you know why you didn’t receive 50/50 custody, you’ll have a roadmap to help you make the necessary changes.
Follow the Terms of Your Custody Order
If you think the child’s other parent was unfairly awarded custody, it’s understandable to be angry. But it’s important to avoid any actions that could jeopardize your custody case later. Don’t withhold child support in protest, and make sure you always abide by the terms of your custody order.
If your ex denies you your court-ordered parenting time, start keeping a log of every refusal.
Work on Making Necessary Changes
Depending on the reasons you were denied 50/50 custody, you might make changes like these:
- Maintaining sobriety, if you use drugs or alcohol
- Finding a safe, stable living environment
- Moving closer to the other parent
- Obtaining a stable job
It may also be helpful to create a detailed log of your parenting time. Include any school functions, medical appointments, and other events that you attend. If you can demonstrate an ongoing presence in your child’s life, the court might be more willing to grant you 50/50 custody.
File a Motion With the Court
Many parents don’t realize that Michigan family courts typically only revisit custody decisions if there has been a significant change in circumstances. This rule aims to prevent the court from being overwhelmed by motions from parents who were simply dissatisfied with custody decisions.
To ask the court to change custody, you must file a Motion Regarding Custody (Form FOC 87). You also generally need to provide evidence of your change in circumstances. Your lawyer will be able to help you decide what evidence you need to include.
Once you file the motion with the court, you’ll need to have your documents served on the other parent.
Cooperate With the Court Process
Often, but not always, the Friend of the Court (FOC) will need to conduct an investigation of your change in circumstances before you can attend a court hearing. Their investigation may include the following:
- Sending you a questionnaire to complete
- Asking you for specific documentation
- Conducting interviews with you, your ex-spouse, and/or your children
- Reviewing any criminal or Children’s Protective Services (CPS) records
- Conducting home visits
- Requesting psychological evaluations
- Requesting substance use testing
The FOC may sometimes ask you and the child’s other parent to attend mediation before a court hearing. If you can come to an agreement this way, you may be able to amend the custody order more efficiently.
If mediation is unsuccessful, you may need to attend a court hearing. At the hearing, the judge will review evidence of your change in circumstances and decide whether to change the custody order.
Looking for Help With Child Custody in Michigan?
Child custody disputes and other family law challenges are more than just legal disputes. They’re deeply personal events that have the power to reshape every facet of your life.
If you’re going through a divorce or trying to reach a child custody agreement, you need a legal advocate who can stand up for your best interests and those of your child.
The team at Gucciardo Family Law has represented families in Oakland, Macomb, and Wayne Counties since 2001. If you’re looking for empathetic, personalized legal guidance, get in touch to see how we may be able to help you today.
