Child Custody in a Michigan Divorce

Legal Custody

Joint legal custody refers to both parents having decision-making authority over the major decisions involving the child; therefore, the parents must be able to work together for the best interests of their child, for this type of custody to be successful.

Joint Custody without required consensus requires the primary parent (the parent with whom the children live most of the time) to discuss major decisions with the nonprimary parent with the intention of coming to a consensus on the issue at hand. If no consensus can be reached, the primary parent's decision controls, and if the nonprimary parent disagrees, the only redress is going to court.

In a sole custody arrangement, the parents confer with one another on issues involving the child but the parent with sole custody makes the decisions.

Physical Custody

Joint physical custody involves the parents splitting the time equally with their child. Some families alternate weeks or parts of the week. This scenario works best when the parents live near each other and the children can maintain their school and social schedules.

Sole physical custody involves the child living with one parent and visiting with the other, generally on weekends, holidays, and vacations. The parent with whom the child lives makes all of the day-to-day decisions regarding the child.

With split physical custody, one or more children live with one parent and one or more live with the other.

Sole or joint custody is awarded based on the best interests of the child and on the following factors:

  1. The love and affection and other emotional ties existing between the child and each parent
  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, 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 proposed custodial home or homes
  6. Moral character and prudence of the parents
  7. The mental and physical health of all individuals involved
  8. The child's adjustment to his or her home, school, and community
  9. Preference of the child, if the child is of sufficient age and capacity to state a preference
  10. The desire and ability of each parent to allow an open and loving, close relationship between the child and the other parent
  11. The existence of domestic violence, whether or not it has been directed at or witnessed by the child; and
  12. Any other relevant factors.

(MCL 552.16, 722.23, 722.25, and 722.26)

Custody will not be awarded to a parent who has been convicted of criminal sexual conduct against the child or a sibling unless both the other parent and the child or sibling (if the court considers the sibling of sufficient age to express an opinion) consent to the custody.

(MCL 722.25)

Legal Custody

Legal custody refers to the right to decision-making authority over the major decisions involving the child, such as the medical care a child will receive or where the child will attend school.

Joint Legal Custody

If joint legal custody is an issue, the court will consider all of the child custody factors listed above in addition to the following factors in making its determination:

  1. Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child
  2. If the parents agree on joint custody, the court will order it unless it determines it is not in the best interests of the child.
  3. If the court awards joint custody, it may include a statement regarding when the child will reside with which parent or may provide that physical custody will be shared in a manner to ensure that the child has continuing contact with both parents.
  4. During the time a child resides with a parent, that parent will decide all routine matters concerning the child.
  5. If there is a dispute about residency, the court will resolve the problem and state the result and basis for the result in writing.
  6. Joint custody does not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has adequate resources, the court may order support payments for a portion of the other parent's housing expenses even when the child is not residing in the house of the parent receiving the payments.

(MCL 722.26(a))

Moving Children

Child custody orders provide that the residence of children cannot be removed from Michigan without permission from the court. In addition, a parent cannot move a child more than 100 miles from the child's legal residence at the time the divorce action was filed. The 100-mile restriction does not apply if the parent has sole custody; the other parent consents to the move; the child's two legal residences were more than 100 miles apart when the action was filed; the change will result in the residences being closer together; or if a court permits the change.

(MCL 722.31)

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