Every judgment in a Michigan divorce must award legal and physical custody of the minor children to one or both parents or, in extremely rare cases, to a third party. I try to help my clients early in their divorces to better understand the concepts of legal and physical custody early in the proceedings so they will be able to discuss custody intelligently with me. If custody will be disputed, we will need to take certain precautions, and you must prepare yourself for what is potentially an emotionally draining and lengthy process.
The paramount consideration in a custody determination is the best interests of the child. The law does not require that time spent with the children be divided equally between the parents, even with joint custody. Consideration of the children’s rights must come before any inquiry regarding the rights of the parents. Remember: Children are not property, and they are not divided, equally or otherwise. If you review the Michigan Child Custody Act and the custody factors, you will note that none of the factors considers the rights of the parents.
It is important to first understand the difference between legal and physical custody. Legal custody is defined as when a parent has the responsibility and right to make major decisions regarding the child’s upbringing (such as medical treatment, what school the child will attend, religious instruction, and participation in extracurricular activities). If the judge believes the parents cannot communicate effectively and cooperatively to work together for the benefit of their child, sole legal custody will be awarded to one parent. However, if the parents demonstrate ability and willingness to work together in making important decisions, most judges are inclined to favor joint legal custody.
Physical custody refers to the right of the parents to have the child physically present with them. The parent with physical custody is responsible for routine matters regarding the child’s day-to-day activities and general welfare when the child is present. Like legal custody, physical custody can be either joint or sole. If one parent has sole physical custody, the other parent will have parenting time, which is sometimes referred to as visitation. Even if one party has sole physical custody, each parent has the authority to make routine decisions during their own parenting time.
At the request of either parent, the court must consider an order of joint custody. If the parents agree on joint custody, the court must order it unless the court determines by clear and convincing evidence that joint custody is not in the best interest of the child. When deciding, the judge must state on the record the reasons for granting or denying the request. A judge may consider joint custody without a parent’s request. In addition to the normal factors considered when deciding custody, with joint custody judges must also consider whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
It is presumed to be in a child’s best interest to have a close relationship with both parents. In making a custody determination, a judge should attempt to award custody in a manner that will promote a strong relationship between children and their parents.
While it is preferable to arrive at a custody agreement through negotiation or mediation, in cases where the parties disagree on custody, the court must make the determination. This can be a very complex inquiry. In most counties, the court utilizes the Friend of the Court to perform custody evaluations and make a recommendation to the court in contested custody cases.
Before deciding custody, the court is required to examine the relationships of both parents with the child using the above factors. Because divorces with children require at a minimum six months from filing of complaint to entry of final judgment, there is typically an extended period of time where the parties are subject to a temporary custody order pending a final determination of custody and parenting time. This can serve as a trial run, affording the parents and the child an opportunity to adjust to the new living arrangements and their evolving relationships. In addition, it provides an opportunity for the court to observe the parties interacting with one another and the child, to gauge the level of conflict between the parents, and to allow the parents to develop a track record of separate parenting on which a final custody determination can be based.
In the early stages of divorce, you may believe that custody will be easily resolved. Regardless, you must behave as though you are being observed by the custody investigator at all times. The way to win a custody case is not to think about the custody case, but to concentrate wholeheartedly on what is in the best interest of your children. By doing so you are in fact preparing for a custody trial and putting yourself in the best position to achieve a favorable outcome.
As a Michigan divorce lawyer with over 25 years of courtroom experience, I have handled numerous child custody cases in West Michigan and am prepared to assist you from start to finish in preparing to protect what's most important to you: Your family. Call my Holland, Michigan office today to discuss how I might be able to assist you.
© 2021 Thomas C. Kates, Attorney and Mediator