Child custody is the most emotional and difficult issue in divorce cases. Custody may take many forms, including sole custody, joint custody, shared custody, etc. Custody has two prongs: physical and legal. Legal custody deals with the “big ticket” decisions regarding health, education, welfare, and maintenance of the child. As a general rule, legal custody is awarded jointly to both parents. Physical custody addresses the physical location of the child and the day-to-day decisions. The basis for determining custody is the best interests of the child. There is no law that says a 12-year-old or older child can choose where he or she lives. The following factors are those considered by the court when deciding what is in the child’s best interests:

  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 and 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 parents 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; and
  12. Any other factor considered by the court to be relevant to a particular child custody dispute.

These factors are the law and can be found at MCL 722.23.

Child custody orders may be modified only if there is a change in circumstances sufficient to justify a change in custody. It is very difficult to modify custody once it has been established in a court order. Before agreeing to a custody arrangement, even temporarily, make sure that you understand what you are agreeing to and ask all of your questions before the agreement is reduced to a court order.

You may want to review the Model Friend of the Court Handbook for more information on custody.

Parenting Time:

The judgment may order reasonable parenting time, leaving it to the parents to decide the dates, or it may provide specific parenting time, hours, and dates.

Parenting time orders may be modified on a showing of a change in circumstances. The law also allows parenting time that has been wrongfully denied to be made up, and the parent that denied the parenting time may be held in contempt of court. Failure to pay child support is not an acceptable reason to deny parenting time.

Attorney to Contact:

Rachel L. Terpstra

Additional Resources

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