If you’re facing divorce in Michigan and have children, then you might be wondering how the emotionally-charged issue of child custody is determined.
There are several things to know and consider. We’ve got many of the answers you’re looking for below.
- Types of Child Custody in Michigan
- How is Child Custody Determined in Michigan?
- Factors a Michigan Judge Looks at When Deciding Custody
- What is a Michigan Parenting Plan?
- Modifying a Michigan Custody or Visitation Order
- Michigan Child Custody FAQs
Types of Child Custody in Michigan
There are two primary types of custody in Michigan.
Legal custody refers to a parent’s responsibility for their children. It includes the right to decide their physical health, education, activities, religious participation, and overall welfare.
Joint legal custody is often called shared legal custody or shared parental responsibility. It is the term used when parents share that authority.
Sole legal custody means one parent has full responsibility to make significant decisions for the child. The other parent doesn’t have a say but usually has visitation rights and pays child support.
Physical custody refers to whom the children live and spend time with.
Both parents often engage in a child’s physical custody together. This is known as joint physical custody. Joint physical custody is also called shared physical custody, shared residential custody, or shared parenting time, depending on the jurisdiction. It means a child spends substantial time living with both parents and has an equal responsibility to care for the child physically.
Joint physical custody does not mean parents have equal 50/50 time with the child. Instead, both parents have substantial and frequent time.
Sole physical custody means a child lives with one parent, called the custodial or residential parent. In most cases, the other parent — called the noncustodial or nonresidential parent — gets regular visits with the child.
When creating a parenting plan or visitation schedule, deciding what kind of legal and physical custody you propose is essential. This will be one of the first things a judge looks at and rules upon.
The presumption is that children benefit significantly from ongoing and regular interaction with each parent (barring adverse circumstances such as substance abuse or domestic violence). So, Michigan courts prefer to order joint legal custody and joint physical custody whenever possible.
How is Child Custody Determined in Michigan?
Parents request orders for custody by opening a domestic relations case with the family division of their county’s circuit court.
They can choose to settle and submit a parenting schedule and parenting plan to the judge for approval.
If parents can’t agree, the family division uses a Friend of the Court (FOC) who may recommend final orders to the judge. If neither parent objects, the court makes the recommendations into final orders.
If a parent files an objection, the court holds a custody hearing that includes presenting evidence, questioning witnesses, and each parent arguing for their requested custody arrangements. From this, the judge issues final child custody orders.
Then, the judge issues final orders.
For unmarried parents still seeking custody, you’ll need to confirm paternity by submitting a notarized Affidavit of Parentage to the Department of Health and Human Services (DHHS) before a hearing. You can also attach the affidavit when you open the case.
You can open a paternity case if you need DNA testing to confirm paternity. Your case will be referred to the FOC office. Each county has different procedures, so ask the clerk about your next steps.
If you open a custody case, you must officially notify the other parent by serving them with papers within 91 days of filing. A representative can do this in person for you, or you can serve papers via certified or registered mail.
The other parent must respond within 21 days of being served in person or within 28 days of receipt by mail. This means the court will approve your requests as long as they’re in the children’s best interests. The court will enter a default judgment without their involvement if they miss the deadline.
The next step is a meeting with both parents, and their assigned FOC case manager where the settlement process begins or the case manager explains the litigation process and the alternative dispute resolution options.
Based on this, you’ll create your parenting plan and settlement agreement or head to custody trial before a judge.
If a case includes a custody investigation, the FOC investigator interviews the children and considers their preferences when making recommendations.
What is a Guardian ad Litem?
Michigan custody laws allow judges to appoint a lawyer if they believe the child’s best interests are not being appropriately represented in the custody case. This attorney is known as a Guardian ad Litem (GAL) or a custody evaluator.
The GAL represents the child during the court case and may file a written report and recommendations for the judge. This report is not admitted into evidence, which means the judge cannot use it to inform their custody decision unless all parties agree to it being admitted.
What is mediation?
Mediation is a collaborative process that parents engage in to try and reach an agreement relating to custody and visitation of their child. A neutral third-party assists in removing roadblocks and increasing communication between the parties.
Guidelines governing custody in Michigan allow mediation to be ordered by the judge or requested by the parents. While a mediator will attempt to frame a compromise, parents are under no direction to agree on something they don’t want.
If mediation fails, there’s a good chance the child custody case will go before a judge for a final decision.
Parenting time without support payments
If the other parent is not making child support payments required by the court, you must continue to obey the court-ordered parenting time provisions and allow parenting time.
Can a judge order supervised visitation or no visitation?
Yes, but there has to be a reason to do so. The courts can only order supervised or no parenting time if there is a concern over the child’s safety and well-being during the parenting time.
Factors a Michigan Judge Looks at When Deciding Custody
There are 12 factors Michigan courts must weigh to determine child custody. These factors are:
- Love, affection, and other emotional health ties exist between the parents and the child.
- 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 their 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 are recognized and permitted under the laws of this state in place of medical care and other material needs.
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- As a family unit, the permanence 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 records of the child.
- The reasonable preference of the child, if a judge considers the child to be of sufficient age to express a preference.
- The willingness and ability of each party to facilitate and encourage a close and continuing parent-child relationship between the child and the parents.
- Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- Any other relevant factors the court should consider for a particular child custody dispute.
Judges use these factors to create a child custody order that still works within the child’s best interest.
While considering these factors, the also court determines if the children have an established custodial environment (referred to as an ECE). Translated, judges want to know if a child has lived with a parent for a significant period and relies on that parent for necessities, guidance, discipline, and comfort.
Read More: The Ultimate Guide to Child Support
What is a Michigan Parenting Plan?
Parenting plans are sometimes called custody agreements and are court orders parents must follow regarding their children’s legal and physical custody. These plans are optional but strongly recommended in Michigan.
A parenting plan differs from the parenting time agreement required in every custody case. The parenting time schedule explains when children spend time with each parent, while a parenting plan details provisions to help you co-parent successfully. Often, both items are combined into one document.
You can present a proposed parenting plan to your Friend of the Court case manager, a custody investigator, and the judge during your case.
These court officials will review the document and provide feedback as needed. The goal is to develop a fair and detailed plan that the court will ultimately approve.
Parenting plans work best when you agree on a plan with the other parent. Judges prefer cooperation, making it easier to get the judge to approve the plan and order as part of a settlement.
Parents often write their own plans, but mediators and lawyers can also write them. If you write your own, have it reviewed by an experienced family law attorney.
Here are some of the detailed provisions Michigan custody experts recommend to be included in a plan:
- Decision-making and custody dispute resolution
- Communication and response time
- Child care
- Education and activities
- Age-based changes
- Moving and traveling
- Medical care
Keep in mind that the more detailed a plan is, the more likely you’ll avoid future disagreements with the other parent. Also, a parenting plan is a court document, and you have legal rights to enforcement when a judge approves it.
Modifying a Michigan Child Custody or Visitation Order
A judge can consider modifying an existing order only if there has been a significant proper cause or a change in circumstances since the last custody order was entered.
To prove a change in circumstances, the requesting parent party must make the case to the judge that the change will impact the agreement and that the requested change is in the child’s best interests. The proper cause must be related to at least one of the 12 best interests of the child factors.
Examples of proper cause or change in circumstances can include:
- A parent is absent from the home
- A parent has begun abusing drugs or alcohol
- A parent is routinely not providing proper care for a child
- A parent has abused or neglected a child
Some examples that do not qualify as a proper cause or change in circumstances are:
- A parent’s financial problems, where the financial issues could be addressed by increasing the amount of child support
- A child’s normal changes in needs and desires as they grow older
- A child’s desire to change custody
If a parent files a motion to change custody while the other parent is deployed on military duty, the judge may stop the proceeding at the deployed parent’s request.
Read More: Alimony and Spousal Support in Michigan
Michigan Child Custody FAQs
Can a parent refuse to allow visitation if child support is not paid?
Visitation and child support are separate legal issues. If you have not received a child support payment, you should contact the Michigan Friend of the Court for the county where your child support order was entered. The Friend of the Court can garnish wages and take other actions to help collect child support.
If visitation or parenting time was established under a court order, you could be held in contempt when you don’t allow visitation.
Does the court consider what a child wants in custody issues?
Yes, but the child’s preference is not binding. Ultimately, a judge will decide what’s best for the child and act accordingly.
A child’s preference is just one of twelve factors the judge will consider in Michigan.
Does Michigan favor mothers over fathers in custody cases?
No. All custody decisions are made without a gender preference.
Can a parent move to another part of Michigan or out of state?
After a custody order is entered, a parent must seek the court’s permission to make a residential change of more than 100 miles inside the state or, in any case involving a move outside Michigan. If the parent wants to move out of state, the relocating parent must get permission from the other parent or the court.
If parents do not agree to the move, the relocating parent must show the move is warranted and will improve the quality of life for the child and the relocating parent.
A judge must also determine if each parent has complied with the court order and utilized their parenting time. This way, the court must ensure that the relocating parent is not moving just to defeat the parenting schedule. Also, the court must be satisfied that the change will preserve and foster a relationship with each parent.
And a Michigan court must consider whether opposition to the move is based on trying to secure a financial advantage or escape possible domestic violence.
Do grandparents have visitation rights in Michigan?
Grandparents do not have custody and visitation rights by default. However, grandparents can petition the court for these rights in limited circumstances:
- With the consent of the parents during or after a divorce or custody case
- If the child was born of wedlock, paternity has been established, and the father is paying child support
- If the child’s legal custody has been awarded to someone other than a parent
- If the grandparent had custody of the child within the last year
- If the grandchild’s parent is deceased.
What is a parenting coordinator?
The judge appoints a parenting coordinator to help resolve disputes between the parents and carry out parenting time orders. The types of conflicts that the parenting coordinator can work with will be included in the order provided by the judge.
Some disputes the parenting coordinator could work with include the child’s drop-off and pick-up; vacation and holiday schedule and implementation; health care management; daily routines; and any other issues presented jointly by the parents.
The parenting coordinator will only be appointed if both parents and the coordinator agree on the scope of their work.
What should I do if the other parent refuses to return the child after a visit?
If the other parent refuses to return the child as specified in the parenting time order, contact the police or the prosecuting attorney and ask to file a parental kidnapping charge.