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Common Divorce Questions: How Does Child Custody Work?

Child custody issues can be contentious.  If parents cannot come to their own parenting agreement, then the court will make custody and visitation decisions for them.

2 Types of Child Custody in Michigan

Michigan has two kinds of child custody.  Physical custody, which refers to where the children will live.  Legal custody refers to which parent has the right to make major decisions for the children.  Physical or legal custody can be sole, which means custody given to just one parent, or joint, meaning the parents share custody.

10 Factors Courts Consider in Making Custody Decisions

A court ultimately makes custody decisions according to what it determines is in the best interest of the children after considering the following factors.

  1. Emotional ties of the children.  Courts assume the child is equally bonded to both parents, but there are situations where one parent has been out of the picture for a time.  In those situations, there are some of the considerations:
    • How does the child relate to each parent?
    • To whom is the child more closely bonded?
    • When the child has a problem, to whom does the child speak?
    • When the child has a triumph, to whom does the child speak?
    • Who spends more hours per day with the child?
    • Who prepares the child’s meals?
    • Who has the ability to separate the child’s needs from their own and to empathize with the child?
  2. The ability of the parents to provide love, affection, and guidance.  In Michigan, this includes a parent’s agreement to make decisions on education, raising the children in their religion, emotional or physical abuse, and other similar issues.
    • Who bathes and dresses the child?
    • Who stays home from work when the child is sick?
    • Who takes responsibility for involvement in academic affairs?
    • Who takes responsibility for involvement in extracurricular activities?
    • Who disciplines the child?
    • Who has been most consistent in the guidance of the child as it relates to their education and faith?
  3. The ability of the parents to provide for the physical needs of the children.  This factor refers to providing a home, clothing, food, medical care, and other care.  This can include:
    • Who buys the groceries, plans and cooks the meals?
    • Who makes purchases for the child?
    • Who attends to special needs of the child?
    • Who has greater earning capacity?
    • Who adjusts working hours based on the needs of the child?
    • Who has certainty of future income?
    • Who has the ability to provide insurance for the child?
    • Who attends classes for professional involvement?
    • Who has requisite knowledge to meet the needs of the child?
    • Who has kept up vaccinations and daily hygiene?
    • Who schedules and takes the child to medical appointments?
    • Who schedules and takes the child to dental appointments?
    • Who arranges for and supervises child care?
  4. The ability to provide stability and permanence.
    • Will one parent provide a stable home even if the family home is sold, and they have to move?
    • Will one parent be moving from one place to another?
    • In whose custody will the family unit not be split?
    • Who has provided the greatest sense of stability of residence for the child?
    • Who is more likely to provide stability in the future?
    • Who can provide a safe environment?
    • Who can provide continuity of the child’s overall custodial environment?
  5. The moral fitness of each parent.
    • Are there any drug or alcohol issues?
    • Is one parent in trouble criminally?
    • Here, the focus is not to punish a parent.  Rather, it is on the effect the parties’ behavior has had, or will continue to have on the child, and how the individual functions as a parent.  For example:
    • Who has priority as a result of the other party having an extramarital affair known by the children?
    • Has either party engaged in any of the following conduct:
    • Verbal abuse
    • Drinking problem
    • Poor driving record
    • Physical or sexual abuse of the child
    • Other illegal or offensive behaviors.
  6. The mental and physical fitness of each parent.  These issues affect the ability of the parent to care for the children.
    • A parent will not be penalized for having a mental health issue, but if they are unwilling to be treated, or to comply with treatment protocols, that is something the court will consider.
    • Does either party have a physical or mental health problem that significantly interferes with the 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?
  7. The home, school, and community record of the child.
    • Who can provide leadership to attend school?
    • Who can provide leadership in extracurricular activity participation?
    • Who is actively involved in school conferences, transportation, and attendance at school events?
    • Who can more adequately assist reducing the necessity for other agency involvement (the juvenile court, the DHS), or if another agency is involved, who can cooperate more fully?
    • Who can more adequately assure the child’s access to friends and peers useful for the child’s development?
    • Who can more adequately plan and supervise the child’s undertaking of home responsibilities that are appropriate to the child’s age and circumstances?
    • Who takes responsibility for completion of school assignments?
  8. Reasonable preference of the child.  A court may talk to a child it deems old enough to have an opinion.  Weight will be given to the preference of the child, but the preference is not controlling factor in a custody decision.
    • This is relevant only if the child appears mature enough and capable of expressing with whom they prefer living, absent the product of manipulation or coercion.
  9. Willingness of a parent to have a relationship with the other parent.  Courts encourage parent-child relationships with both parents.  A parent who engages in parental alienation (turning the child against the other parent) is in jeopardy of not obtaining custody.
    • Who can best cooperate with an appropriate parenting time schedule by the other party?
    • Who is least likely to disparage the other parent in the presence of the child based upon past performance?
    • Has either party actively sought to alienate the child from the other parent?
  10. 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?
  11. Any other factor the judge deems relevant.  The judge is not limited by these factors and can look at any other factor when making the final custody and visitation decision.
    • Who can most likely address the special needs of the child?
    • Has either parent threatened to kidnap the child?
    • Does either parent spend excessive time traveling for the child?
    • Does either parent have a record of failure to exercise parenting time, failure to notify, or failure to return the child?
    • Who has responsibility for the actual and proposed child care arrangements?

For assistance on child custody issues, or any other aspect of your divorce process, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.