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Child Custody in Michigan

Whenever parties to a divorce or unmarried parents split up, there will have to be a decision as to where the minor children will primarily live and how often they will spend time with the other parent (parenting time). Today, the issue of custody is been divided into two subcategories: legal custody and physical custody. Courts, however, are tending to de-emphasize "custody" and talk more in terms of parenting time. Still, it is important to understand all the terms.

Legal Custody

Legal custody refers to which parent (or both) will have decision-making authority on major and important issues affecting a child’s life (health, education and welfare). Generally, the Court will award "joint legal custody" to both parents unless the Court determines that the parents simply cannot agree on major issues that affect the children’s health, education and welfare.

Physical Custody

Physical custody refers to the actual physical residence of the children. While joint physical custody may initially sound appropriate, it requires a great deal of commitment and understanding by both parents and is often just plain not practical (i.e. parent’s live in different school districts). Often, however, parents believe that allowing a child to live primarily in one home or the other, while spending time with the other parent, gives a more solid foundation for the child’s growth and development. Too often, however, both parties believe that they are the proper party to provide that primary home.

The parents who can work out custody/parenting arrangements with the least amount of conflict will generally find that their children are the least affected by the breakup of their parents. When parents cannot agree, the Court evaluates each party’s claim to determine what is in the best interest of the children. There are a number of factors the Court is required to take into consideration when making this determination. They include:

  • The love, affection and 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 education 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, or other remedial care recognized or permitted under the laws of this state in place of medical care and other medical 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 health 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 a sufficient age to express a 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.
  • The presence of domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  • Any other factors considered by the Court to be relevant to a particular child custody dispute.

In a divorce case where a child custody/parenting time dispute is involved, there will generally be an order directing the Friend of the Court or another agency to do an investigation. There may also be orders requiring evaluations from a psychologist. Either the Friend of the Court or the psychologist will conduct an investigation and will then file their report with the Court. If such an investigation is ordered, we will discuss it fully, long in advance, so there will be no surprises in store for you. It is the duty of such an investigator to make recommendations to the Court concerning the custody of the children, so you should spare no effort in furnishing complete cooperation so that your side will be understood and believed. The person conducting the investigation may ask you the names of people with whom you have worked, your friends, people who know you. These people may be contacted by the investigator. So talk with your references ahead of time and ask whether they would mind talking to someone regarding your case. Be careful never to tell them what to say.

Typically, a case will take longer to be resolved where there are child custody disputes than any other type of dispute and will increase the cost dramatically. Trying to separate the issues affecting your children from the other issues in your divorce is one of the most important things you can do for yourself, your children, and your pocketbook.

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To file for a divorce in Michigan, the spouse filing the complaint for divorce or the responding spouse to that complaint must be a resident of Michigan for at least 180 days before the complaint is filed. Second, at least one of the separating spouses must have resided in the county where the complaint was filed for at least 10 days before the complaint is filed. If one or both of the residency requirements are not met, then the court does not have jurisdiction to hear and decide the divorce.
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