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child custody
Child Custody
In many cases, the most difficult decisions involve child custody.
Child custody is often the most difficult part of any divorce. Involving a child, or children, in the divorce process is always difficult.
Each parent usually believes they should have custody. Sometimes a parent believes the other parent should not have any custody.
However, as difficult as it might be for any parent to hear or understand, particularly with all of the hardship and difficulties of ending a marriage, both parents are normally granted parenting time with their child(ren). Some people call parenting time, “visitation”.
Child Custody vs Parenting Time
Every parent wants their child to be with them all the time, but each parent is entitled to be a parent to their child. Child custody is closely related to parenting time, but they are not exactly the same.
There are many popular myths and misconceptions regarding custody and discussions can get complicated. That’s why the Smart Law Group will take the time with you to discuss how the law applies to your situation so you can make the smartest decision for your and your child(ren).
Strictly speaking, there is no such thing as “physical custody” in Michigan law, but that term is commonly used all the time. When thinking about the time a child is with a parent, it is more appropriate to think about parenting time.
The parent that has physical custody, or parenting time, will usually be making the day-to-day decisions for their child.
Legal Custody
The other type of custody that is commonly discussed in divorce cases and that will be a part of any divorce case with any minor children is legal custody.
Legal custody refers to making major decisions for the minor child(ren). These major decisions usually involve:
- Education
- Medical Care
- Religion
It is important to consider whether the parents will be able to cooperate with each other in this decision-making process.
Important Note: The decision-making process associated with “legal custody” usually has nothing to
do with the time the child lives with each parent.
Joint Custody or Sole Custody
Custody may be joint for both parents or sole for one parent. Sole custody means that one parent makes the major decisions for the minor child. Joint custody means that both parents jointly make decisions for the child. It is common for the Court to award joint custody for both parents, but remember that every case is different.
It is worth noting that even if parents agree on custody, the Judge has to agree that the custody agreement is in the best interest of the child or children. The Judge always has the final authority to make its own decision as to custody, although that seldom occurs, and Judges almost always will agree to whatever the parents can agree upon.
Custody Trials and the Michigan Child Custody Act
If parents cannot agree on custody, the Judge would have a trial and would make a decision based on the best interest of the minor child (or children). The Michigan Child Custody Act requires the Judge to make findings of fact on all of the following factors:
- 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 continuation of the educating and raising of the child in its religion or creed, if any.
- The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other remedial care recognized and permitted under the laws of this state in place of medical care, and other marital 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 court deems the child to be of sufficient age to express preference.
- 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.
- Domestic violence, regardless of whether the violence was directed against or witnessed by a child.
- Any other factor considered by the court to be relevant to a particular child custody dispute.
It is important to note that not all of these factors are weighted equally. Some of these factors are more important than others. Some of these factors will have minimal impact on a Judge’s decision.
Custody Trial Issues
A common question is whether a child can choose which parent to live with and the simple answer is no. all of the factors must still be considered, and the child must be old enough to be able to express a preference.
Also, a child will (almost) never testify in a trial. If a Judge has to make a decision about custody, the Judge will have a private conversation with the child (no parents and no attorneys) and the Judge will not reveal the contents of the conversation or any preference, if there is one.
A custody trial can be very difficult. Custody trials are emotional, time consuming, and expensive! This is
why The Smart Law Group will review all of these factors with you to make that best and smart decision
for the welfare of your child or children.
While a custody trial isn’t the ideal outcome, The Smart Law Group is very experienced in the trial
process and has successfully represented many parents in the Family Law Courts throughout the State of
Michigan, including Wayne County, Oakland County, and Macomb County.
Modifying a Child Custody Order
What about modification to a child custody order?
The established custodial environment is a critical factor in any change of custody. This is also a complicated area of the law and needs to be discussed thoroughly whether it is an initial request for custody, or you are requesting a modification of a child custody order, or defending against any request or motion for modification of custody.
Of course, parents can always agree to make a change of custody in proper circumstances. But even if
there is an agreement, it is important to discuss this with your attorney to make sure that there are no
unforeseen effects of any such agreement and ensure that a smart decision is being made.
There are many circumstances that can lead to a modification of a child custody order. A few examples
are:
- A child’s needs as they get older, including health issues or educational issues;
- Health issues of a parent, such as an illness, disability or drug/alcohol issue;
- A parent moving out of state, i.e. a change of domicile;
- A parent getting married and that marriage having a negative impact on a child. The same might apply to a parent’s significant other having a negative impact on the child.
No matter what your situation it, you want and need to make smart decisions for your child and yourself. The Smart Law Group will be by your side to protect you and everything that is important to you.
Your first step in fighting for your place in your child’s upbringing starts with that first call!