» Child Custody

Is there a chance that the courts would split the children up?

Yes.  The courts can award what is called “split custody,” which means that one or more of the children live with one parent, and one or more of the children live with the other parent.  In these cases a typical arrangement would be to have the children with their respective custodial parents during the week, and on the first and third weekend all children would be with one parent, while the second and fourth weekend all children would be with the other parent.  This allows for the siblings to spend time together.

Split custody may be a solution in some or all of the following situations:

a. neither parent has the ability to care for all of the children at once;

b. there are problems between one or more of the children and a particular parent;

c. a child has special needs, and that requires a substantial amount of time and energy;

d. there are problems between some of the children; and/or

e. one of the children is involved in an activity that requires a substantial amount of time and energy (such as some athletic, musical,  or other endeavor).

Split custody is very rare.

What if after my divorce is final I want to change the custody arrangement for my children?

Michigan statutes provide as follows:

The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.

During the initial divorce or custody proceedings, the court uses a “preponderance of the evidence” standard in determining who will prevail. This is something like 51% of the evidence in favor of the party seeking custody. Before a court will consider changing custody, a party must allege and prove either that there is “proper cause” for a change or that there is a “change in circumstances,” meaning something more than a minimal or insignificant change.

Then, if a party meets the threshold for changing custody by showing a change in circumstances or proper cause, that party must meet a higher burden or proof known as “clear and convincing.” This is more like 75% of the factors favoring the party seeking custody. In a nutshell, it is a big mistake to settle for one form of custody believing you can just wait for a while and then petition for a change without many of the facts also changing.

The Legislature has concluded that stability for children is an important goal.  As a result, it is very hard to change custody once it has been established.

Can parties just agree among themselves about child custody without the need for “mediation?”

Yes. Parties often reach a settlement themselves or with the help of their attorneys. Less than 10% of divorce or custody cases ever go to trial.

As an aside, there are official training programs for mediators.  A person does not need to be an attorney to become a mediator; however, a mediator has to have taken the official training program or get an exemption from that requirement to appear on a court list of available mediators.

It is not “illegal” for someone who is not a mediator and who did not have “official training” to help a couple resolve their differences.  Sometimes this is a friend or family member.  Sometimes this is a member of the clergy or a marriage counselor.  The court is supportive of any respectful and effective means of resolving issues.

Are my only choices for deciding child custody the Friend of the Court caseworker, the Friend of the Court referee, or a trial before the judge?

No. Actually, the court now has the power to order people into mediation. Mediation takes place in a conference room (either at one of the attorney’s offices, the mediator’s office, or another location—but usually not the courthouse). A trained mediator presides and attempts to help the parties reach a settlement on one or more of the issues in the case. If the parties cannot reach a settlement, then the matter proceeds to trial.

Who decides how to apply the best interest factors?

There are many ways that legal custody is decided in Michigan. First, a party requests what he or she wants in the complaint for divorce or the answer to that complaint.

If legal custody is disputed, or physical custody is disputed, the court usually refers the case to the Friend of the Court.

The Friend of the Court meets with the parties individually or jointly and may interview the child(ren) if he/she/they are old enough (generally 6-7 years old or older). The Friend of the Court evaluator may also talk to teachers, friends, family members, and other parties in the course of the investigation as well as reviewing report cards and other documents that are either requested or supplied by the parties themselves. Before the interview, the parties are given forms to complete which contain information that is necessary.

After reviewing the information, the Friend of the Court evaluator issues a recommendation. If both parents accept the recommendation, then the court can consider entering an interim order which converts the recommendation into an interim order of the court. If one or both parties reject the recommendation, then the court holds a hearing to determine the next step. At the hearing, the court could adopt the recommendation if it is consistent with the status quo or hold an evidentiary hearing to decide what the legal and physical custody should be during the pendency of the case. The court could also decide to send the case to a Friend of the Court “referee” for a hearing. The referee is an attorney employed by the Friend of the Court to preside at these hearings, which take place in a conference room of the Friend of the Court.

At a referee hearing, the parties are present as well as their attorneys. Witnesses can be called, but they are asked to remain in the hallway until it is time for them to testify.

After the referee hearing, the Friend of the Court Referee issues his/her recommendation, and the parties have 21 days to accept or reject that recommendation.  If it is accepted, it may be time for the parties to agree to a judgment of divorce which includes the terms of the recommendation.  If it is rejected, then the court will review the pleadings, transcript from the referee hearing or tapes of the hearing, and exhibits to determine whether the referee’s decision should be adopted by the Court.  If there is any evidence that could not be presented at the referee hearing (e.g., evidence of a new source of income or evidence the referee would not consider), then the judge could hold a further hearing in the courtroom.

How is custody decided?

Michigan courts apply what is known as the “best interests test.” It has the following 12 factors:

  1. The love, affection, and other emotional ties existing between the parties involved and the child.
  2. 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.
  3. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized or permitted under the laws of this state in place of medical care, and other material needs.
  4. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
  5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
  6. The moral fitness of the parties involved.
  7. The mental and physical health of the parties involved.
  8. The home, school, and community record of the child.
  9. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
  10. 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.
  11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  12. Any other factor considered by the court to be relevant to a particular child custody dispute.

What does “joint legal custody” mean?

Joint legal custody usually means that the parents must: 

  1. have equal access to health, educational and legal information about each child;
  2. be listed as “parent” on the school enrollment forms, emergency cards, etc.;
  3. keep each other appraised of any child’s affiliation with a church, religious or spiritual group or of a parent’s intent to affiliate a child with a church, religious or spiritual group; and
  4. come to joint decisions on:
    1. response to life-threatening health conditions or health conditions that threaten a long-term negative effect on a child’s quality of life;
    2. major elective surgeries;
    3. body-piercing;
    4. drug therapy;
    5. emotional, behavioral, or mental health treatment or assessment;
    6. major changes in the religious, oral, or philosophical values being taught to the child;
    7. change in the type of schooling (e.g., public to private) and/or daycare;
    8. skipping one or more academic grades;

Joint legal custody would normally entitle each party to receive timely copies of the child’s report cards and current school photographs.

It would entitle parties to be informed of parent/teacher conferences and activities (including sports) and/or school programs to which the children and parents are invited to attend. 

Note: MCLA 722.30 provides as follows:

Notwithstanding any other provision of law, a parent shall not be denied access to records or information concerning his or her child because the parent is not the child's custodial parent, unless the parent is prohibited form having access to the records or information by a protective order. As used in this section, "records or information" includes, but is not limited to, medical, dental, and school records, day care providers records, and notification of meetings regarding the child's education.

Accordingly, a parent does not need to have joint or sole legal custody to have access to school and health records.

What is legal custody?

Legal custody is the right to participate in major decisions affecting the children, such as whether or not to have surgery, whether or not to attend a private school, whether or not to get therapy or counseling or an abortion. Legal custody usually involves issues regarding third parties such as the doctor, the teacher, or the therapist.  The court must actually use the words “sole” legal custody or “joint” legal custody.

What is physical custody?

Physical custody involves where the children live and what the parenting plan (or visitation schedule) is. If parties have similar amounts of time with the children, they have “shared physical custody,” even if it is not exactly 50/50. If one party has significantly more time with the children than the other parent, that parent has “primary physical custody” or “primary physical possession” of the children.

There is a trend towards not characterizing a parenting plan as “primary” physical custody since that may make the other parent feel marginalized.  In many judgments, the parenting schedule is defined, but it is not “characterized.”

What kinds of child “custody” are there in Michigan?

There is physical custody and legal custody.