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Child Custody

     Prior to commencing a discussion of child custody, an explanation of the different types of custody may be useful. Michigan courts generally grant "joint legal custody" to both parents. Joint legal custody requires both parties to agree and cooperate with each other concerning major issues gavel (9K) affecting the minor child or children such as medical decisions, religion and educational decisions. The court can also award joint physical custody to both parents. Here the minor children will live with one parent part of the time and the other parent part of the time. Courts can also award joint legal custody to both parents with one parent having the primary physical custody of the child or children and the other parent being awarded parenting time.

     If both the father and the mother agree to a custody or parenting time agreement, the court will usually go along with the parties wishes provided it complies with the law. If the parties cannot come to an agreement, the Michigan Custody Act requires the judge to determine custody based on the "best interests of the minor child". In considering the best interests of the minor child or children, the court must consider twelve factors as outlined by the statute. The twelve factors are:

  • 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.

Child Custody

  • The moral fitness of the parties involved.
  • The mental and physical health of the parties involved.
  • 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.

scales_photo_2 (19K)      While the court must consider each of the above factors, they are not necessarily given equal weight. It may be that one party has most of the factors decided in his or her favor, but that custody is awarded to the other party because of a factor the trial court considers more important under the state of affairs. While one of the factors is the reasonable preference of the minor child, it is not conclusive. A young child's preference may be given little weight, while an older, more mature, child's reasonable preference may be given more weight.

     Generally, if custody is an issue, the Friend of the Court will conduct an investigation of the parties. The children and the parents may be interviewed as well as school authorities, friends, and relatives of the parties. Once the investigation is complete, it will produce a custody recommendation, which addresses each of the above factors. The recommendation is not binding but is given considerable weight by the court in making its final determination.

Child Custody

     Once the court has entered a custody order, the court is should not revisit that order unless the parent requesting change can establish a "change of circumstances" sufficient to reopen the previous custody decision. The purpose of this requirement is to provide a stable environment for the minor children. Accordingly, modification of custody is not proper if there has been no substantial change in their existing custodial environment.

     In determining whether to modify a child custody order, if no established custodial environment exists, the trial court may change custody if it finds, by a preponderance of the evidence, that the change would be in the child's best interest. However, if an established custodial environment exists, the court may not change custody unless there is clear and convincing evidence that it is in the best interest of the child. Because of the higher standard as well as the requirement of a change in circumstances, it is significantly more difficult to modify a custody order than it is to obtain custody in the first place.

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