In a divorce involving minor children, nothing is more important than custody of the children. There are two kinds of custody, legal custody and physical custody. Legal custody grants the power to make major decisions for the children regarding such issues as education, religion and health. Physical custody determines where the children live. In Michigan, the statute presumes that both parents will be awarded joint legal custody of the children. This means that both parents will work together to make joint decisions on major issues impacting the children. It does not mean that parents have to have the same household rules in their respective homes. Even if the parents cannot get along with each other, the Court will award them both joint legal custody if they can work together to agree upon major decisions for the children. If the parties absolutely cannot agree upon anything, including making decisions for their children, then the Court can award one party Sole Legal Custody. This will allow one parent to make all of the decisions about the children, with no input from the other parent.
Historically, physical custody was defined as sole physical custody or joint physical custody. Since there are so many variations of joint custody and since so many parents were wasting so much money for the label of sole custody rather than joint custody, or the other way around, many of the Courts have moved away from labeling custody as joint versus sole custody, and rather concentrate on fashioning a parenting time schedule which is in the best interests of the children. The child custody laws in Michigan are gender neutral; in theory neither parent has an automatic advantage based on gender. When determining a custodial arrangement or a parenting time schedule, the Court is required to consider what is in the best interests of the minor children when determining where the children should live, and how much parenting time each parent should have with the children. Because every family is different there is no set parenting time schedule.
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Unless one parent is abusive or unfit, the Courts believe that it is in the children’s best interests for them to have a close and loving relationship with both parents, and will attempt to fashion a parenting schedule which facilitates that relationship. Since parents know their children better than anyone else does, it is ideally better for the parents to sit down with one another (and with each other’s child custody attorneys) and work out a parenting time schedule that is in their children’s best interests, and which takes into consideration the unique needs or schedules of their children. If the parents are having a difficult time working out a parenting time schedule between themselves, they can often benefit by meeting with a mental health expert who can work with the parties to fashion a parenting time schedule which meets the needs of the entire family. It is always better to work out a parenting time schedule with your spouse since both parties then can maintain control of their family and their children. Additionally, if an agreement is reached, it makes it much easier to continue to co-parent the children after the divorce is final. If the parties are unable to work out a parenting time schedule for the children, then the case will have to proceed to arbitration or trial, and your child custody lawyer will square off against theirs to prove who better represents the child’s best interests.
In making a custody and parenting time schedule, the law requires that the Court consider the twelve custody factors in determining what is in the children’s best interests. The twelve custody factors are as follows:
- The emotional ties existing between the parents and the child.
- The capacity and disposition of the parties involved to give the child love and guidance and to continue to raise the child in his or her religion or creed, if any.
- The capacity and disposition of the parties to take care of the child’s material needs. (Differences in income is not decisive on this issue. The court can order child and spousal support to minimize any such differences.)
- The length of time the child has lived in a satisfactory environment and the desirability of maintaining continuity. (Who the child has lived with and for how long may become important in any effort to change custody arrangements after the divorce has occurred.)
- The permanence of the family home. (This factor focuses on the permanence of the family unit rather than the acceptability of homes or of any child care arrangements.)
- The moral fitness of the parties involved.
- The mental and physical health of the parties involved, only in so far as they affect the parents’ ability to parent the children.
- The home, school and community record of the child.
- The reasonable preference of the child, if the court determines the child to be old enough to express such a preference.
- The willingness and ability of each of the parents to facilitate and encourage a close and loving relationship between the child and both of the parents.
- Any domestic violence, whether it involved the child or not.
- Any other factor considered by the court to be relevant in any particular case.
In determining parenting time, the Court will consider the following factors in deciding the frequency, duration, and type of parenting time:
- The existence of any special circumstances or needs of the child.
- Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
- The reasonable likelihood of abuse or neglect of the child during parenting time.
- The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
- The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
- Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
- Whether a parent has frequently failed to exercise reasonable parenting time.
- The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.
- Any other relevant factors.
If the case proceeds to trial it is imperative to have a child custody attorney present all of the relevant and important issues in your case to assist you in receiving a custody-and-parenting-time agreement which is in the best interests of your children. Because it is extremely difficult to change custody once the custodial environment has been established, it is essential to negotiate and secure the parenting time schedule that you want, and which is in your best interests when the Judgment is entered. The child custody laws in Michigan make it very difficult to change custody after a custody order has been entered because they want to ensure stability for the children, and they don’t want children bouncing back and forth between the warring parents. After a custody order has been entered, the Court will only change custody if there has been a material change in circumstances since the last custody order was entered, or if proper cause exists. Proper cause must be related to one of the above twelve custody factors and it can be difficult to prove.