Child Custody

Child Custody Attorneys Located in Canton, Michigan

I.   Overview

Child custody is the most emotional and difficult part of many divorce cases.  Children love both parents and most want their parents to be together. When parents do not live together, children and parents alike may experience anxiety which may cause anger, sadness and sorrow. Family structure and relationships are different, including the relationship between both parents and the children, especially when changes involve different residences and a loss of family traditions. It is a very difficult time for everyone, which may worsen when parents do or say negative things to each other. Parents can help by establishing or maintaining children’s regular routines, encouraging frequent and regular contact between children and both parents, and by being supportive of the other parent’s involvement in the children’s day-to-day life through participation in school and other activities, and exchanging information regarding the children’s well-being.

While the husband-wife or significant other relationship may end, the responsibility to be co-parents continues forever. Though your legal relationship may end when your children become adults, your relationship as parents continues indefinitely. Your children will always want you both to be part of their lives, to attend high school or college graduation, to be at their weddings, the birth of their children, and other major life events. They want to be able to proudly say that despite what mom and dad may have felt toward one another, they always treated each other with courtesy and respect and never put us (the children) in the middle of their dispute. Children need both parents. When you as parents cooperate, you reassure your children that change will be positive. You also build the foundation for your new parental relationship and responsibilities.  Family law matters are difficult and painful and we will do our best to handle your case with you and your children’s best interest in mind.

II.    Custody Options

Where there are minor children and the divorcing parents cannot agree on custody, visitation, or child support, the final decision on these issues is made by the circuit judge hearing the divorce case. Custody is one of the most emotional and traumatic issues in any divorce case.  Options include sole legal and physical custody, joint legal and physical custody, joint legal custody with physical custody to one of the parties, or any other form of custody on which the parties can agree.  There are several custody arrangements that can be agreed upon by parents or ordered by the judge. However, in custody disputes parents must be advised of joint custody. At the request of a parent the judge must consider awarding joint custody and must state during a hearing the reasons for granting or denying the request. The judge must decide if joint custody is in the best interests of the child. The judge could award joint custody and equally divide the time the child spends with each parent. However, the judge could also award joint custody and not equally divide the time the child spends with each parent.  For example, the judge could award joint custody, with one parent having physical custody during the school year and the other parent having physical custody during the summer vacation period.

Joint Legal Custody:

Means that parents will communicate and cooperate with one another and attempt to reach mutual decisions regarding major issues affecting their children. This decision process includes, but is not limited to:
–     Major Medical Decisions
–     Educational Decisions, and
–     Religious Upbringing, in any.

Joint Physical Custody:

Means that children live with one parent part of the time and the other parent part of the time. This time does not have to be equal. The parent who has care of the children at any given time is responsible for routine decisions regarding the children.

Primary Physical Custody:

Means that the children live primarily with one parent.

Sole Physical Custody:

Means that the children live with one parent and that parent is responsible for making major decisions regarding the children.

III.   Best Interest Factors

The basis for determining child custody is “the best interests of the child.” The “Child Custody Act” sets forth eleven factors that a judge must consider when making a custody decision. These factors are:

(a)     the love, affection and other emotional ties existing between the parties involved and the child;
·      Meal Preparation
·      Bonding with and relationship to competing parties; to whom is the child                       bonded?

(b)     the capacity and disposition of the parties involved to give the child love, affection, and guidance, and continuation of the educating and raising of the child in its religion or creed, if any;

·      Who bathes and dresses the child?
·      Who stays home from work when the child is sick?
·      Who takes responsibility for involvement in academic affairs?

(c)     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;

·      Who makes purchases for the child?
·      Who attends to special needs of the child?
·      Who has greater earning capacity?

(d)     the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;
·      Who can provide a safe environment?
·      Who can provide continuity?

(e)     the permanence, as a family unit, of the existing or proposed custodial home or homes;
.     In whose custody will the family unit not be split? The issue is not an “acceptability of the custodial home” standard.

See Fletcher v. Fletcher, 200 Mich. App. 505, 513 (1993), 447 Mich 871 (1994).

(f)     the moral fitness of the parties involved;

·      Who has priority as a result of other party having an extramarital affair known by the children?
·      Verbal abuse
·      Drinking problem

(g)     the mental and physical health of the parties involved;

·    Physical or mental health problem that significantly interferes with ability to safeguard the child’s health and well being.
·    Age of contestant compared to age of the child; would energies of the child overwhelm the contestant?

(h)     the home, school and community record of the child;

·      Who can provide leadership to attend school?
·      Who can provide leadership in extracurricular activity participation?

(i)     the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
·    Whom does the child favor?

Note: Is this factor to be given strong consideration, based upon intelligent, unbiased, child in interview who uses relevant, important factors? See Wilson v. Gauck, 167 Mich. App. 90 (1988); Flaherty v. Smith, 87 Mich. App. 561 (1978); In Re Custody of James B., 66 Mich. App. 133 (1975); Lewis v. Lewis, 73 Mich. App. 563 (1977). The court should articulate how much emphasis it is placing on this factor. Age, maturity, cohesiveness of reasoning, existence of external pressure, and continual “flip-flopping” in preferences are all relevant.

(j)     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;

·    Who can best cooperate with an appropriate visitation schedule by the other party?

(k)     Domestic violence, regardless of whether the violence was directed against or witnessed by the child;

·    Have there been incidents of violence in the home by any party against any party?
·    If so, has there been a police report, arrest, or conviction?
·    Has there been a pattern of violence whether reported or not reported?

(l)    any other factors considered by the court to be relevant to a particular child custody dispute.

·    Excessive time involved in traveling for the child

IV.    Post-Judgment Modification of Child Custody

       and Support Orders

Child custody and support orders are modifiable if a party can prove the threshold issue that there has been either a change in circumstances or good cause since the entry of the previous order making it imperative that custody be changed.  That change in circumstances or the good cause cannot be just a normal life change (like children growing older, for example). The court must make a determination that in some major way, the change in circumstances or good cause impacts upon the child’s best interests in a fairly major way. The length of time that the child has lived in a stable environment is an important preliminary consideration that the court will make. If the court decides that a custodial environment exists with the custodial parent, then the parent challenging that custody will have a higher burden of proof. As before, the referee’s or judge’s decision will be based upon what is in the best interest of the child. Although the court may take the child’s preference into consideration, this is only one of eleven factors. This alone will not convince a court to change custody.


Please call us today at 734 927-9782 to discuss your child custody matter.