Michigan Child Custody Questions

Michigan child custody attorneys provide answers to frequently asked questions with regards to Michigan child custody laws.

Who will get custody of our child?

The Michigan Child Custody Act presumes it is in the best interests of a child to have a strong relationship with both parents. Courts in Michigan use twelve factors called the best interest factors to determine what custody arrangement is in the best interests of the child/children involved.

The court must look at the parenting situation before the divorce or custody case was filed. The court has to make a determination if there is an established custodial environment with either parent or both parents. An established custodial environment is a physical and a psychological environment that develops over an appreciable time and significant duration.

If there is an established custodial environment, the party petitioning the court to change it has to prove that the change is in the child’s best interests by clear and convincing evidence.

What is joint custody? What is sole custody?

In Michigan, there are two types of custody: legal and physical.

Legal custody is the ability to make important life decisions for your child, such as health care, education, child care and general welfare. Joint legal custody gives both parents the right to make these decisions and they should consult with one another before making non-routine decisions. Sole legal custody gives one parent all decision-making responsibilities.

Physical custody refers to the actual physical residence of the child. Joint physical custody allows the child to retain a residence with both parents, usually with one parent being the primary custodian and the other parent having parenting time on a set schedule. Sole physical custody means that the child resides with only one parent. The other parent may or may not have parenting time or visitation rights.

If both parents share custody does anyone pay child support?

Child support in Michigan is calculated using the Michigan Child Support Formula. This formula uses both parents’ incomes, the number of overnight visits each parent has with the child per year, and the child care and health care expenses each party pays to determine how much child support is needed.

Child support is almost always awarded to the parent who has the most overnight visits. The amount of child support will depend on the numbers input into the formula.

Can a parent refuse to allow visitation if child support is not paid?

No. Visitation and child support are separate entities. If you have not received a child support payment you should contact the Michigan Friend of the Court for the county where your child support order was entered. The Friend of the Court has the ability to garnish wages to help collect child support.

If visitation or parenting time was established under a court order, you could be held in contempt for not allowing the visitation.

When can my child decide which parent to live with?

A child’s preference can be considered when they are of the age and maturity the court finds sufficient to express a reasonable preference. Each judge has discretion whether to consider the child’s opinion in a custody dispute.

In Michigan, a child’s preference is just one of twelve factors the judge will consider; a child cannot just decide to live with one parent.

Do grandparents have custody and visitation rights?

Grandparents do not, by default, have custody and visitation rights. However, grandparents can petition the court for these rights in very limited circumstances: with the consent of the parents during or after a divorce; if the child was born of wedlock, paternity has been established, and the father is paying child support; if legal custody of the child has been given to someone other than a parent; if the grandparent had custody of the child within the last year; or if the grandparent’s child (the parent of the grandchild) is deceased.

What is a parenting plan, and do I need one?

A parenting plan, usually called a parenting time agreement, is an agreement between parents and signed by the judge that dictates when each parent will get time with the child. It is important to have a default parenting plan to fall back on if disagreements occur.

If my separation agreement includes custody/support can it be included in the divorce decree?

In Michigan a separation agreement is called a Judgment of Separate Maintenance (JSM). A JSM allows the parties to resolve the property, custody and support issues, but does not provide for them to be divorced. At any time, either party can petition the court to turn the JSM into a Judgment of Divorce, ending the marriage between the parties. The terms of the JSM can be rolled into the Judgment of Divorce.

What can I expect from temporary orders?

The most common temporary orders are for support (child or spousal) and for child custody. These orders are meant to give the parties and their children structure and financial support during the pendency of a divorce. A court can enter a temporary order when either party petitions for its entry.

Temporary orders are extinguished when a new order or a final order is entered. The content of a temporary order will vary depending upon the information the judge has at a hearing for entry.

When will child custody be decided?

An initial custody determination will be made by the Friend of the Court early in the case. The Friend of the Court will issue a recommendation based on information gathered from each parent. Each party then has the right to object to this recommendation and present evidence to the judge as to why a different order or recommendation should be made.

The parties can also negotiate a child custody agreement, and the judge will adopt it if he/she finds it is in the best interests of the children.

When can I modify custody?

Child custody can be modified if there is proper cause or a change in circumstances. The modification must be in the best interests of the children. It is up to the party asking for the modification to present evidence that a change has occurred or that there is proper cause, and that their proposed change is in the best interests of the children.

What if we cannot agree on a custody arrangement?

If the parents cannot agree on a custody arrangement the court will hold a trial. At the trial, each party can present evidence regarding why their proposed custody arrangement is in the best interests of the child. The court can adopt one party’s proposed custody arrangement or order any custody arrangement it feels is in the child’s best interests.

What is an ex parte order?

An ex parte order is an order that is entered without a hearing. The party seeking to get the order entered must allege sufficient facts for the judge to find that imminent danger or harm could occur in the time it would take to give notice to the other party.

Ex parte orders are usually entered when the divorce case is filed or in emergency circumstances. If the other party does not believe the ex parte order is necessary, an objection should be filed within fourteen days of receiving notice of the order.

How is custody decided?

In Michigan, all child custody decisions must be in the best interests of the children. The factors a judge considers are:

  • The love, affection and other emotional ties between the parents 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 the child in its religion;
  • The capacity and disposition of the parties involved to provide the child with food, clothing and care;
  • The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  • The permanence of the existing or proposed home;
  • The moral fitness of the parties involved;
  • The mental and physical health of the parties involved;
  • The home, school and community record of the child;
  • The reasonable preference of the child, if the court considers the child to be of sufficient age to express it;
  • The willingness of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent;
  • Domestic violence; and
  • Any other factor the court considers to be relevant.

How can I increase my chances at getting a larger custody agreement?

In order to get more parenting time with your children you have to show the court that you can handle the time and that you are genuinely interested in raising your children. Before your custody trial, get as involved with your kids as you can, and document everything you do. Find a routine that works for you and your kids and stick to it.

Obey every court order, even if you do not agree with it. Gather your evidence and witnesses. You have to bring information to court that will show the judge it is in the children’s best interests to spend as much time as possible with you.

What is visitation?

Visitation, called parenting time in Michigan, is court-ordered time for each parent to enjoy with their children.

Can a judge order supervised visitation or no visitation?

Yes, but there has to be a reason to do so. The courts can only order supervised or no parenting time if there is a concern over the safety and well being of the child during the parenting time. Supervised parenting time should only be used when other, less restrictive methods of ensuring the child’s well-being cannot be used.

Do courts favor the mother over the father?

Although the statutes are written gender neutral, and the Child Custody Act presumes it is in the best interests of the child to maintain a relationship with both parents, many courts still award primary custody to the mother. Fathers have an uphill battle in most courts, but the battle can be fought and won with proper preparation by the father and his attorney.

What should I know before a custody trial?

The most important thing to know is the law. You should carefully review the best interest factors and be able to present evidence that supports you having custody for each factor.

Can I collect my own evidence to use if my custody case goes to court?

You must collect your own evidence. The judge is a fact finder and can only determine what facts exist based on the evidence put in front of him or her. If you don’t show something to the judge, he or she will not know it. You should use care when collecting evidence to ensure that you are not violating any laws.

Keeping a journal and having witnesses that can testify about your time with your child are two strong sources of evidence. You should consult with your attorney to determine what type of evidence will be necessary for your specific case.

Do I need to use a Guardian ad Litem/Custody Evaluator?

In Michigan, it is the job of the Friend of the Court to investigate and make recommendations on child custody, parenting time and support. Guardian ad Litems are rarely used in custody cases; they are usually sought to represent children who have been victims of abuse or neglect.

A Guardian ad Litem can be used in a child custody case if there is a question about the parent’s ability to make decisions that are in the best interests of the child.

Will my child need to appear in court?

Not usually. A child custody case can usually be decided without subjecting the child to the court process. However, if the child would like to voice his or her opinion or is needed to testify about a specific occurrence, the child can be required to attend a court hearing.

Judges usually interview children in their chambers, away from both parents. Some judges do not even allow attorneys to be present. When a child testifies, the goal is to minimize any harm that can be done to them.

What is the Parental Kidnapping Prevention Act?

In Michigan, it is a crime for an adoptive or natural parent of a child to take the child, or retain the child for more than 24 hours, with the intent to detain or conceal the child from the other parent who has parenting time rights, the adoptive parents, or any other person in charge of the child at the time of the taking.

Parental kidnapping is a felony punishable by up to 1 year in jail and/or a fine of up to $2,000. The Parental Kidnapping Prevention Act is a federal statute that gives Michigan the ability to enforce custody orders from other states to prevent parental kidnapping.

What if my wife tries to move the kids out state?

After a custody order is entered, a parent must seek the court’s permission to make a residential change of over 100 miles or outside of the state of Michigan. If the parent seeks to move out of state, the relocating parent must get permission from the other parent or the court.

If both parents do not agree, the relocating parent must show the change of domicile is warranted. The court must be satisfied that the move will improve the quality of life for the child and the relocating parent. The court must determine the degree to which each parent has complied with court orders and utilized their parenting time. This way the court must ensure that the relocating parent is not moving just to defeat the parenting time schedule.

The court must be satisfied that the change will allow a modification of parenting time that will preserve and foster a relationship with each parent. The court must consider whether opposition to the move is based on a desire to secure financial advantage. The court must also consider any domestic violence.

Can a parent change the child’s last name without the other parent’s permission?

No. In order to change a child’s last name a court must enter an order allowing the change to occur. A parent petitioning for a child’s name change must notify the other parent and any interested parties and allow them an opportunity to object to the name change at a hearing.

If I have custody, will I receive child support?

The Michigan Child Support Formula usually awards child support to the parent who has the most parenting time. The amount of support will depend on income, overnight visits and other costs. In some cases, the support amount can vary from the support guidelines if both parties agree.