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.