Divorce

Are you considering requesting the court to modify your parenting time?

Has the other parent filed a motion to change parenting time?

If you have answered yes to either of the above questions, you need to know what the judge considers when granting or denying a motion to change parenting time?  

MCL 722.27a (6) provides guidance on what the court may consider when determining the frequency, duration and type of parenting time, These factors are as follows:

(a)   The existence of any special circumstances or needs of the child.

(b)   Whether the child is a nursing child less than 6 months of age, or less than 12 year of age if the child receives substantial nutrition through nursing.

(c)   The reasonable likelihood of abuse or neglect of the child during parenting time.

(d)   The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.

(e)   The inconvenience to, and burdensome impact or effect on, the child traveling for purposes of parenting time.

(f)   Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.

(g)   Whether a parent has frequently failed to exercise reasonable parenting time.

(h)   The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. 

A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence a custodial parent’s intent to retain or conceal the child from the other parent.  

In addition, there are some other considerations that can be looked at, such as:

•   The flexibility of the parents’ schedules

•   The developmental stage of the children

•   Special needs or restrictions of a parent

•   Ability of the parents to communicate and cooperate

•   Conflict level between the parents

•   Distance between the homes of the parents

•   The maturity level of the children

•   Children’s commitment to community such as work, school events, or participation on other activities

•   The children’s cultural and religious practices

•   The nature of the parent/child relationship at the present time

•   Parental fitness concerns, such as domestic violence, substance abuse or mental health issues

•   The parent’s ability to care for the children and meet the needs of the children

•   The parent’s availability to meet the need of the children

•   When determining he breaks from school, consider the number of exchanges

I don’t know if anyone is ever comfortable with the idea of “fighting” over their children, but child custody disputes are the most common and difficult—both emotionally and from a legal standpoint—areas of conflict that I see in my West Michigan family law practice.

What do you do if you are one of those parents, and you find yourself on the brink of what feels like an emotional war over your kids. Or, what if it’s already turned nasty, and everything you do seems to be getting back to the judge?

Begin by asking yourself: what type of parent do you believe you are? Would a judge think you were a good parent if they could see your behavior, even outside of the courtroom, during the case? Do your decisions reflect a parent that puts the needs of their children ahead of themselves? It’s important to understand that your day-to-day actions and words—whether done and said in the heat of an emotional conversation with ex or not— will make their way to the judge if your case goes to trial. And if you are reading this and thinking this won’t happen in your specific situation, I implore you to think again.

Emotions and feelings of betrayal or entitlement aside, you need to understand what any judge hearing your child custody case will be concerned with.

Judges are concerned with the “moral fitness” or character of the person standing in front of them and that person’s ability to make good decisions as a parent. Yes, that means that whether you like it or not, or you think it is fair or not, your judge will use the evidence that is presented to her in your trial as the basis of determining your character. That means your judge is tasked by the law to make their best decision about who are you as a parent, and whether you truly put your kids’ best interests first, without the benefit of having seen who you may have been before you found yourself in this awful situation. So what do you do to ensure that your judge sees you in the light you see yourself as your children’s parent? Here are some DOs and DON’Ts I recommend to my own clients to help them prevail in their child custody cases:

1. DO stay active with your children’s education, regardless of where your kids are currently staying during the   school week.

• Attend all parent/teacher conferences, and stay in weekly contact with your kids’ teachers through email, by telephone or in person.
• Be proactive about addressing issues your children may be having in school.
• Make it a priority to attend all of your kids’ extracurricular activities, even if that’s something you and your ex used to divide and conquer. It’s a whole new world during a child custody dispute, and your focus should be on the importance of your kids’ education and development.

2. DO get your kids counseling, even even if it’s just a few sessions with a therapist who can help them work through their new realities.

Every child copes with change in his own way. Even if you think your children are handling things well, every child in the middle of a custody war between two adults they probably love benefits from having a neutral third party they can talk to about their feelings. Your children need to feel safe while this process is ongoing. And remember, your children feel your anxiety and frustration, even when you don’t think they are paying attention, take care of their mental health.

3. DON’T date during your divorce!

• Instead, DO focus on your kids because it shows the court that you are placing the children’s needs ahead of your own.
• But what if I really, really need to date? I am going to restate what I just said, in case you skipped over it to get to this section: DON’T date during your divorce. However, if you do choose to date,
• DON’T introduce the children to your significant others. Be mindful that your children are struggling emotionally with the breakup of the family. If your significant other is important to you, and there is a genuine chance that they are going to remain in your life after the case, then they will understand that there will be a more appropriate time in the future for you to introduce them to your children.
• That definitely means DON’T have your significant other spend the night when you have your kids!
• DON’T spend the night away from home unless it is for business (and if it is for business, DO keep documentation). Staying the night away from home can show, once again, that your needs come before your children’s. And, it can be misread as a possible affair.
• Even if you were never married to the other parent and are in the middle of a child custody battle, take note. Having multiple new people in and out of the children’s lives is not going to be viewed as healthy or appropriate by your judge. So, DON’T do it.

4. DON’T use social media. For more insights into why I think my clients are best served taking a social media break during a child custody case, see a recent post I wrote on this very topic.

5. DON’T be insane!

• That means DON’T engage in name calling, arguing, or using foul language in front of your kids. They’re already dealing with enough. Your inappropriate behavior toward your children’s other parent— in front of your children no less— demonstrates a lack of discretion, and it places your children on the front line of the war.
• DON’T be insane in your written communications, either.
• DO make sure that all verbal and written communication to the other parent is relevant to your children.
• DO remember: Anything you put in writing can and will show up in court. If you send it, the judge may read it.
• DO ask yourself before you hit send: Is what I am saying in this email or text really how I want the judge to see me? If the answer isn’t a resounding ‘YES’, delete it.
• DON’T disparage your kids’ other parent in front of them.
• Instead, DO focus your activities around your kids when they are with you.
• DON’T spend what should be quality time with your children making sarcastic comments about your ex to them, or to others in front of them. By doing so, you may be unintentionally making your kids feel like they have to take sides on which parent they like more.
• I’m guessing none of you really wanted things to go this way, but your kids are the ones with the least control in these situations, so DON’T add to their stress by making them feel like they are the frayed rope in an angry game of tug-of-war.
• DON’T stalk, harass, or repeatedly call your ex. The last thing you need to have happen is the judge to call your mental health into question. And engaging those types of behaviors will certainly give the judge cause to ponder your character as a person and as a fit parent.
• DON’T fight at encounters or exchanges. You are there to drop off or pick up your children, not to engage in battle with the other parent. And if you are having issues with the other parent’s behavior at exchanges, DO document the exchanges via video.

6. DO continue taking your kids to church if that’s what you’ve done historically.

• DO feel free to enroll them in church-related activities that are age appropriate.
• However, if you and your children have no history of church attendance prior to the custody case, DON’T use your new-found interest in church as a reason to try to prohibit the other parent from weekend parenting time.

This might seem obvious, but you’d be surprised:

7. DON’T do anything illegal.

• DON’T get arrested. Really, if you can’t stop yourself from doing things that could during your child custody case, why would the judge have any reason to believe you should be the parent who is awarded custody?
• DON’T even risk the seemingly “silly little things” like driving without a license.
• If your license has been revoked or suspended, DON’T drive. Doing so shows complete disregard for the law. Judges don’t like that.
• DON’T use drugs and/or alcohol.
• You may be required by the court to take a drug screen.If the other party has alleged that you have a history of illegal drug use—DO voluntarily obtain a drug screen during the case.
• And, above all else, DON’T test “dirty” on any mandatory drug screens. That’s a sure way to say ‘goodbye’ to being granted custody of your children.

8. DO behave as though all of your activities are being documented by a private investigator and will be used at trial.

It’s not uncommon for private investigators to be hired in custody cases. Who knows your habits better than your ex? They know where you party. If they are attempting to make you look bad, what better way than to get video footage of you drunk at the bar. And while we are on the topic of bars:

9. DON’T go to bars or nightclubs while your child custody case is ongoing. These types of activities will only make you look bad at trial, as there is no way to spin frequenting bars and acting like a drunk for a judge. Believe it or not, the risks of unintentionally behaving badly after a night at the bar far outweigh the benefits, even though it may not always feel that way.

It may feel like the DON’Ts outnumber the DOs at a point in time in your life when you already probably don’t feel like you have much control. This is when I remind my clients that even though it doesn’t feel like it right now, their child custody case is not going to last forever. Remember:

DO take your kids’ best interests into consideration before you say or do anything during a child custody case. Even if you believe you always have and do to this day, now is the time to be even more diligent. And honestly, your kids need it right now more ever. Custody battles are frustrating and hard. Judges make custody determinations specifically on whom they believe is really going to look out for your children’s best interests.

DO give the judge as many reasons as possible to like you not only as a parent, but also as a person, and to rule in your favor.

Fighting for your children is a hard enough process to go through.

DON’T make choices or mistakes that you could easily avoid. DO everything with the best outcome for your children in mind.

If you’re going through a divorce, or in the midst of a custody battle, it’s important to understand what the custody terms means in Michigan. In Michigan, the courts recognize two types of custody: physical and legal.

PHYSICAL CUSTODY:
Physical custody determines where the children will live and their living arrangements. Custody can be sole or joint. Sole physical custody means physical custody is given to only one parent. The child will primarily reside with that parent, and that parent provides most of the day to day care for the child. Joint physical custody means the parents share custody.

LEGAL CUSTODY:
Legal custody determines who will make important decisions for the children. If sole legal custody is awarded, only one parent has the authority to make these decisions. However, if joint legal custody is awarded, both parties will be involved in making important legal decisions for the child such as where they go to school, what religion they are, if and what extra-curricular activities the child will participate in, and major medical decisions. Joint legal does not depend on the amount of time that the child spends with each parent. No matter what the physical custody is, parents can share joint legal custody of the child.

Examples of what joint legal custody is as follows:

1. Each party will foster, encourage and support the relationship between the minor child and the other parent.
2. The parties will consult together concerning major decisions involving the health, education, religion and welfare of the minor child. Neither party shall enroll the child in a school without agreement of the other or an order of the court.
3. The parties will both use their best efforts to ensure consistency in matters affecting the upbringing of the minor child and to work together to promote the best interests of the minor child.
4. Each parent will promptly advise the other of any illness, emergency, or other significant events concerning the minor child (including school or health problems) of which the parent becomes aware.
5. Each parent will be entitled to complete access to the minor child’s school, medical, psychological, religious and other records.
6. The parties shall each be entitled to be informed of all parent/teacher conferences and all other activities (including sports) and/or school programs in which the child are involved and parents are invited to attend.
7. The parties shall each be entitled to copies of the minor child’s report cards, medical records and current school photographs.
8. Each party shall keep the other party generally informed of his or her whereabouts in the event of an emergency, including their present address, personal telephone number, and any other emergency contact number.
9. Each party shall decide all routine matters concerning the minor child during such time that he or she has physical custody of or parenting time with the minor child. The parties will each use their best efforts to provide consistency for the child in connection with such routine matters.
10. Each party shall have the right to make routine emergency decisions regarding the minor child when the child are with him or her.

DETERMINING THE CHILD’S BEST INTEREST: It’s always best when parents can agree on custody. However, when parents are unable to agree on custody, then the court must decide on custody and parenting time by reviewing the “best interest factors of the child”.

This legal test requires the court to consider these 12 factors:

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 deems the child to be of sufficient age to express a preference.
10. 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.
11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
12. Any other factor considered by the court to be relevant to a particular child. Schmitt Law, PLLC knows that your first priority is your children, and will find creative solutions that fits your specific situation.

Schmitt Law, PLLC can advise and represent parents throughout the entire custody process, offering skilled advocacy for parents, while being empathetic to the challenges involved in determining child custody. Laurie Schmitt of Schmitt Law, PLLC is a West Michigan family law attorney specializing in collaborative divorce as well as separation, divorce, child custody and support, paternity, and other family law litigation. She is licensed by Michigan State Bar and the U.S. District Court for the Western District of Michigan, and has extensive advanced training in divorce mediation and collaborative divorce. Contact Laurie at (616) 608-4634 for a confidential consultation.

You’ve heard it a million times that going through a divorce is difficult. As a West Michigan Divorce Attorney, I can state that divorce is full of challenging moments. However, with some common sense, you can avoid some common divorce pitfalls by following a few basic rules:

1. Don’t start a new relationship. Well, Duh! Need I say more. Respect the current relationship and see it to the end. Don’t confuse your children with introductions to new “friends” while in the midst of the divorce. Judges don’t appreciate it, as it shows a lack of good judgment. And it will only fuel the fire in the divorce proceeding. If this is a person you intend to have a serious relationship with at the conclusion of the divorce, then they will understand that this is not the appropriate time to be introduced to the children.
2. Couch surfing sucks! Don’t move out of the marital home without a plan. Changes will happen as you go through your divorce, so be prepared to deal with life as it comes at you. The biggest change clients struggle with is adapting to living on a now single income. During this turbulent time, you need to provide stability for your children. That means you need to provide an appropriate home for them while going through the divorce. So, don’t jump the gun and move out of the marital home without a solid financial plan, and a safe place for your children to visit or live.
3. Don’t share the details of your divorce with your children. Divorce doesn’t mean hide the fact that you are going through a divorce from your children. But there are certain facts that should remain between adults. Allow your children to be children for as long as possible. Remember, the changes taking place in your life are also taking place in theirs. It’s hard enough for children to cope with major life changes. They certainly shouldn’t be burdened with adult conversation and information about the divorce. Adult conversation is just that!
4. Your children are not the Pony Express. Don’t use your children as a go between to relay messages to your spouse. If you are unable to speak to your spouse civilly, then hire an attorney to assist you. It will be their job to communicate with your spouse or spouse’s attorney during the divorce. But, don’t use your children as a form of communication between each other.
5.  It wasn’t immaculate conception! Don’t think that because you are divorcing, you are the only parent. The children have two parents – and always will. Don’t force them to choose between their parents. They love both of you. So, avoid putting them in the middle of the hostility and anger.
6. Your children are not Olympic gold medal winners! Don’t use extra-curricular activities to monopolize your children’s free time. If they didn’t participate in the activity while you were married, they most likely don’t need to participate in the activity while the divorce is pending. Now is not the time to enroll them in an excessive amount of activities, especially if these activities take place on your spouse’s parenting time. If you can’t agree on extra-curricular activities, the rule should be that parenting time with the other parent is far more important than participation in an extra-curricular activity.
7.  It’s not your way or the highway! We all know divorce is hard on children. It is hard enough for the children to acclimate to living in two households. Respect that there are now two households for the children, with two sets of rules. Although consistency is ideal, you can’t expect your soon to be ex-spouse to share in your beliefs and rules regarding discipline.
8. Avoid purchasing big ticket items while going through your divorce. It’s not the time to buy a new car or home. Wait until the dust settles, and you’ve reached a settlement agreement with your spouse. Your spouse could claim that you used marital money to finance your new car or home. It then may become a marital asset to be divided in the divorce.
9. Pay your bills. You need to continue to meet your obligations. If it is a joint debt, you remain obligated. There is life after divorce. And the consequences of your decisions during your divorce will follow you afterwards. Some people believe that getting a divorce means walking away from marital debt and starting over. No! You still have responsibilities – meet them.
10. Your bartender is not your counselor! Use discretion when talking about your divorce. Don’t over-share all the details of your divorce with your friends and colleagues. Refrain from making every conversation about the trials and tribulations of your divorce. Some things are better left private. And, after the divorce, you want your friends to be standing by you.