In 2021, in the United States, 50 percent of marriages ended in divorce, the sixth highest divorce rate in the world. In Michigan, the divorce rate is 12 percent per every 1,000 individuals. When a couple seeks a divorce and there are children from that union,custody of the children must be discussed, planned and agreed upon, otherwise, the Courts will step in and make those decisions for the parents. Custody, in regards to the law, defines each parents responsibility toward the minor children, for example, where the children reside, who makes decisions for the children and the monetary support for the children.
However, custody orders are not limited to those divorcing, but also for those parents who have a child in common. These parents also deal with the same issues relating to custody just as if they were married.
Types of custody
There are two different types of custody - legal custody and physical custody, and any custody order must define who the custodial environment lies with; that means a determination as to whether there is a joint or sole custody arrangement.
Legal custody, almost always awarded jointly, is having the right to make important decisions regarding your child’s life. This includes where they go to school, major medical decisions and what religion the child practices. Physical custody pertains to the child’s living arrangements. Physical custody can also be broken down into sole custody and joint custody, which will be discussed later.
Steps in custody cases
When a divorce is filed, the issue of custody, which determines the rights and responsibilities of parents toward their children, is usually addressed from the start of the litigation. If the parties do not agree on the issues of custody and parenting time, one parent can file a motion with the Court asking the Court to make that determination.
However, custody cases are not only for married couples seeking a divorce. Custody cases can also be filed if the parents are not married and there are issues between the parents as it relates to the care and custody of the child(ren). There are common fallacies among parents wherein they believe a custody order cannot happen if a father has not been listed on the birth certificate or has signed the Affidavit of Parentage; however, in these cases, the Court can make determinations as to who the child’s parents legally are, and a custody order can still enter. Sometimes, the Courts can grant grandparents parenting time, under certain situations.
A custody case will determine each of the parents rights and responsibilities toward the child or children. Possibly, the most common discussion point in a custody case is parenting time. If the parents can agree on a schedule that is beneficial to the children, the Courts will then adopt that agreement; however, if the parents cannot decide on a schedule for parenting time, then the Courts must do so. The Courts must grant “reasonable parenting time” with each parent, though that is different in each case.
Generally, most Courts want to see a shared parenting time schedule, that means the parents spend equal time with the children, however, in some cases, the physical custody of the children may be granted to one parent and the other parent would have set times for parenting time, such as an alternate weekend schedule. These schedules are very case and fact sensitive, so there is no clear cut line on how parenting time may be ordered.
Sometimes, Courts will direct the parties to Friend of the Court to assist the family in resolving legal concerns regarding paternity, custody, parenting time, and support matters. Friend of the Court can meet with parents or legal guardians in the case, investigate disputes or claims made by either party and give recommendations to judges in regards to custody, parenting time and child support. This office also helps administer these types of cases to include enforcement of the provisions of any custody order.
The legal process
Once a case is filed, and a party petitions the Court for an order for custody, parenting time and support, a judge will then determine what is in the best interest of the child and whether a parent should have sole custody or if the parents should have joint custody. Sole custody, when discussing physical custody, means the child spends the majority of their time with one parent over the other. Joint custody is normally shared time between both parents. Joint custody agreements can look different from case to case as the time with each parent is based on work schedules and where each parent lives.
The child or children’s preference to live with one parent over another may be taken into consideration if the judge agrees the child is old enough and mature enough to give their opinion, though that is not the determining factor on how custody will be granted. More emphasis is given to how the parent cares for the child instead of which parent the child might like best at that time. When there is a dispute about custody and parenting time, the Judge must take into consideration all of the “Best Interest Factors”, not just one or two. The court system wants what is in the best interest of the child and wants their living situation to be as stable as possible.The judge will consider 12 factors when determining custody:
The love, affection, and other emotional ties existing between the parties involved 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 of the child in his or her religion or creed, if any;
The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs;
The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;
The permanence, as a family unit, of the existing or proposed custodial home or homes;
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 judge considers the child to be old enough to express a preference;
The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A judge may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent;
Domestic violence, regardless of whether the violence was directed against or witnessed by the child;
Any other factor considered by the judge to be relevant to a particular child custody dispute.
It is important to note that once custody has been determined there are certain regulations that must be followed including:
Not moving the child’s residence out of Michigan without court approval – this does not mean you cannot take the child out of the State for vacation or other reasons like that, you just cannot permanently move the child from the State.
Written changes of address to Friend of the Court from a parent with custody.
A parent is forbidden to change the child’s legal residence more than 100 miles of their current address without permission of the Court or of the other party.
Once the terms of custody have been decided, the next issue discussed is child support. This number can vary greatly based on many factors, however, all children must be financially supported by both parents. A parent is still required to pay child support even if they are not exercising parenting time or their parenting time has been suspended.
Child support is a monthly payment made up until the child’s 18th birthday, has graduated from high school or turns 19 ½ - whichever is later. The payment is based on a variety of factors, to include the number of children, income from all jobs, social security, disability and worker’s compensation, and the number of overnights each parent has with the children. Note, even if the parties shall equal parenting time, one parent may still be ordered to pay support. The Friend of the Court will obtain information from both parents and will recommend and order support.
The steps of divorce and custody are not simple or easy and are often emotional. Many factors go into a judge's decisions which most parents do not understand. Representing yourself in either of these cases is not recommended as you want to make sure your rights to your children are protected. Consider talking to a lawyer to make sure you receive fair and accurate representation.
Click the link below to check out my short Q&A video on Custody and Parenting Time on YouTube!
Kimm Burger, Attorney
I want to hear your side of the story.
KB Law Office P.C.