Custody

Common Custody Questions

 

How do Judges decide custody?

 

The Courts must determine the “best interests of the child” in deciding custody.  Best interests of the child means the total of the following factors (MCL 722.23):

  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. 
  8. The home, school, and community record of the child.   
  9. The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference.   
  10. The willingness and ability of each of the parents to facilitate and encourage a close and continuous parent-child relationship between the child and the other parent. 
  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 custody dispute. 

What is the difference between Legal and Physical Custody?

 

Legal Custody is the authority to decide important matters for the child, such as where the child attends school, what medical treatment the child receives and other important matters.  Many courts will order joint legal custody. This means that both parties shall in making these decisions, although if one party has sole physical custody, that parent is authorized to decide all routine matters concerning a child.           

 

Physical custody is where the child actually resides. The parties can have sole or joint physical custody. Some joint custody agreements are not specific, and others specify periods of time for custody. 

 

 

When can a Judge change custody?

 

Custody can be modified based on “proper cause shown or a because of a change in circumstance.” MCL 722.27(1)c.  Then the Court must determine if there is an “established custodial environment.” If there is an established custodial environment, the Court cannot change custody unless the Petitioner can prove it is in the best interests of the child by clear and convincing evidence. This is a high burden.  If the Court determines that there is not an established custodial environment, then the Petitioner must prove it is in the best interests of the child by a preponderance of the evidence.

 

 

 

DISCLAIMER

All descriptions of current law and its application are not intended as legal advice on any particular case. There are nuances in the law, and specific facts will significantly affect how the law may define your rights and how the courts determine a particular case. All readers of this material are directed to seek an individual consultation with an attorney regarding your case.