In many cases, splitting up with a long-term partner is simpler if you aren’t married. However, if you have one or more children with your partner, separation can create more child custody problems than you may realize.
Here’s a closer look at how to handle child custody while separating as an unmarried parent.
Who Has Custody Before Court Intervention?
Before diving into the specifics of custody for unmarried Michigan parents, it’s important to understand how state law defines “custody.” In Michigan, there are two types of custody: physical and legal.
“Physical custody” refers to the child’s housing and day-to-day care, while “legal custody” refers to the right to make major decisions about the child’s life, such as their medical care and education.
When a child’s parents are married, they share legal and physical custody as soon as the child is born. However, state law works differently for unmarried parents.
Many people don’t realize that when the parents aren’t married, the child’s mother automatically has sole legal and physical custody when the child is born. This remains true even if the parents have signed an Affidavit of Parentage.
If the parents aren’t married and the child’s mother no longer wants the father to be involved in the child’s life, the father typically has no legal custody rights until the court issues a custody order or grants him parenting time.
Can Unmarried Parents Create Their Own Custody Arrangement?
When married parents divorce, Michigan’s family courts often encourage them to write a detailed custody plan. There’s no legal requirement like this for unmarried parents undergoing a separation.
However, if you and the other parent are on speaking terms, it may be a good idea to work out an agreement on your own. That way, you can set clear expectations and avoid potential confusion down the line.
Drafting a joint parenting plan on your own is usually faster, cheaper, and less stressful than getting the courts involved. If you and the child’s other parent aren’t able to do this and you want to seek sole or joint custody, though, it might be time to file a custody case.
How Michigan’s Initial Custody Laws Impact Parental Rights
For many unmarried couples who split up, creating a custody agreement is the best way forward. However, because Michigan grants initial custody to mothers, unmarried fathers generally don’t have any recourse to enforce these agreements without a court order.
If you’re an unmarried father, you can still seek joint or sole custody through the courts. But before you can do that, you’ll need to legally establish paternity.
Steps to Legally Establish Paternity in Michigan
A common way to legally establish paternity is to sign an Affidavit of Parentage. For the document to be valid, both parents must agree to sign it.
Usually, unmarried parents will complete an Affidavit of Parentage at the hospital shortly after the child’s birth. However, if you didn’t do this when your child was born, you can complete an affidavit at a county registrar’s office or a local Michigan Department of Health and Human Services office.
Many unmarried fathers mistakenly believe that an Affidavit of Parentage grants them equal parental rights. This document, or another kind of paternity verification, is a prerequisite for seeking custody or parenting time, but it doesn’t actually grant these rights in itself.
If a father has any doubts as to the paternity of his child, he should seek a DNA test first. An Affidavit of Parentage creates child support obligations for both parents, and you can’t simply back out after signing. The affidavit can be undone, but you’ll need proof that a mistake was made or fraud occurred, as well as a court order.
What if One Parent Won’t Sign the Affidavit of Parentage?
Sometimes, either the child’s mother or father will refuse to sign the Affidavit of Parentage. This can be frustrating, but fortunately, there’s a clear process for legally establishing paternity that includes these steps:
- Either parent may file a Complaint for Paternity in Michigan family court
- The court will order genetic testing to verify paternity
- If paternity is confirmed, the court will issue an Order of Filiation
- This order establishes the man as the child’s legal father
Like an Affidavit of Parentage, an Order of Filiation lays the foundation for custody and parenting time decisions.
What Happens if You Take Custody Without Establishing Paternity?
In the event of a messy or acrimonious separation, an unmarried father might be tempted to take custody of his child without a court order and against the wishes of the mother. However, this is not a good idea.
Like many states, Michigan has parental kidnapping laws. This means that, at least in some circumstances, a father could actually face criminal charges for taking custody without the permission of the child’s mother or the court.
Seeking Custody Through the Michigan Family Court System
After legally establishing paternity, an unmarried father who wants joint or sole legal and physical custody needs to file a complaint with the Family Division of the Circuit Court. It’s generally advisable to enlist the help of an attorney to do so.
Once you’ve filed the complaint, you must have the complaint and the summons formally served on the other parent. The summons is a document informing the other parent of the court date.
Whether you’re the one who filed the complaint or the one who’s been served, there are a few key points to keep in mind:
- The plaintiff (the parent filing the complaint) must have it served on the defendant (the other parent) within 91 days of filing
- The summons and complaint must be delivered by a third party
- The defendant has 21 days if served personally, or 28 days if served by mail or out of state, to respond to the complaint
- If the defendant ignores the summons, the plaintiff may win by default
Deciding custody through the court system takes time, and serving the summons and complaint is just the beginning. So what do you do if you’re concerned for your child’s well-being?
If you believe the other parent is endangering your child’s welfare, your lawyer can help you file a Motion for Temporary Orders. This is a formal request for the court to make emergency custody arrangements until the case has been decided.
What Happens Next?
Most people imagine child custody cases being decided in the courtroom. That does happen sometimes, but most Michigan family courts will try to encourage the parents to work out a custody agreement themselves first.
Often, the court will require parents to attend mediation before the case goes before a judge. Mediation is a form of alternative dispute resolution that’s less formal and less expensive than litigation. Here’s how it works:
- The parents sit down with a trained, impartial third party (the mediator)
- The mediator facilitates discussion and helps the parents find common ground
- There’s no requirement to reach an agreement during the mediation session
If the mediation is successful, you’ll draft a parenting plan and present it to the judge for approval. If you still can’t reach an agreement, the court may need to make the final custody decision.
How Do Michigan Courts Decide Custody Cases? 12 Key Factors
When handling custody cases between unmarried parents, courts use the same standard they do in other custody cases: making decisions based on the best interests of the child. To do so, they consider 12 factors:
1. The Child’s Relationship With Each Parent
This is one of the most important considerations in any Michigan custody case. The court will consider how close the child is with each parent and how much time each spends with the child on a regular basis.
For example, imagine your child has lived with you for their entire life. You make their meals, help them get ready for school, and read them stories every night. If the other parent is seeking full custody, the court would be unlikely to give it to them. Doing so would uproot your child’s strongest parental relationship.
2. The Willingness and Ability of Each Parent to Emotionally Care for the Child
Courts also consider which parent stays home from work when the child is sick, helps them with homework, takes them to extracurricular activities, or otherwise provides care.
3. The Capacity of Each Parent to Provide for the Child
Emotional capacity to care for the child is important, but so is the capacity to provide food, clothing, medical care, and other essentials. However, this doesn’t mean that a higher-earning parent automatically gets preference.
If one parent earns less but is the one who makes doctor’s appointments and buys the child’s food/clothes/toys, the court might consider using child support to make things more equal.
4. Whether the Child Is in a Stable Environment
Family courts take a close look at which parent can provide a safe, stable home. If the child is currently in a stable environment with one parent, the courts will consider whether it’s best for the child to continue that arrangement.
5. The Permanence of Each Parent’s Family Unit
If a child’s parents aren’t married to each other, they may be married to or in relationships with other people. Ideally, the courts want children to be in relatively permanent, stable family units.
6. Each Parent’s Moral Fitness
If extramarital affairs, criminal activity, or other undesirable behaviors have impacted the child or affected one party’s skills as a parent, the court will consider that.
7. Each Parent’s Physical and Mental Health
If one or both parents have a physical or mental health condition that compromises their ability to care for the child, the court will keep that in mind while making custody decisions.
8. The Child’s Home, School, and Community Life
Ideally, the courts want to award custody to a parent who encourages attendance at school, helps with homework, and makes sure their child gets to see and talk to their friends.
9. The Child’s Preference
In Michigan, there’s no “magic age” where a child becomes old enough to decide which parent they want to live with. However, if the judge believes a child is old enough to state a preference, they will consider that preference while making custody decisions.
It’s important to note that if the court does ask a child for their preference, what they say won’t be shared with anyone, including the parents, the parents’ attorneys, or the child’s siblings.
10. Whether Each Parent Is Willing to Support the Child’s Relationship With the Other Parent
In most cases, judges want each parent to facilitate the child’s relationship with the other parent. That typically includes avoiding criticizing the other parent in front of the child.
There is one important exception. If one parent takes reasonable steps to protect themselves or the child from domestic violence or sexual assault by the other parent, Michigan law bars judges from using that against them in custody cases.
11. Domestic Violence
If either parent has been the perpetrator of domestic violence, including physical and non-physical abuse, the judge must take that into account when making custody decisions. This applies regardless of whether the violence or abuse was directed toward the child.
12. Any Other Factors Deemed Relevant by the Court
This is a kind of “catch-all” to ensure the courts take all relevant information into account. Some other factors judges commonly consider include:
- How far apart the parents live from one another
- Whether either parent has missed visits or failed to drop off/pick up the child at agreed-upon times
- Whether there’s a possibility that a child could be separated from their siblings
- Whether either parent has ever threatened to kidnap the child
If you’re concerned about the strength of your custody case, our team can discuss these and other factors with you to help give you an idea of your legal standing.
Need Help With Your Custody Case?
Navigating custody cases as an unmarried parent comes with a unique set of challenges. But if you want to be a positive presence in your child’s life, it’s well worth the effort.
If you’re considering initiating a custody case or you need to respond to a custody complaint, this isn’t a situation you have to handle alone. At Gucciardo Family Law, we have more than 30 years of experience and are committed to supporting Michigan parents and children through some of the most difficult times of their lives.
If you think we may be able to assist you, get in touch today to see how we can help.
