How Is Child Custody Decided?

Child custody and parenting time can be decided by mutual agreement of the parties or it can be decided by the court, but either way, it must be in the best interests of the chld.

 If custody arrangements and parenting time cannot be decided, the court will make this determination by first  looking at whether there is an “established custodial environment” with one or both parents.  This is an important step because it will be determinative on the burden of proof needed to change custody.  If it is determined that an established custodial environment exist, a change may be made only on clear and convincing evidence that the change is in the best interests of the child.  If it is determined that an establised custodial environmnet does not exist, custody may be decided by a showing by a preponderance of the evidence that the proposed custodial arrangement would be in the best interests of the child.  The court may find that an established custodial environment exists in more than one home. 

Once the court makes a determination on the record of the established custodial environment and the burden of proof going forward, it will then apply that burden to the  “best interests of the child” factors of the Michigan Child Custody Act.  

The 12 factors that the court will weigh in determining the best interests of the child (although they are not all weighed equally) are as follows:

• 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 to continue the education and raising of the child in his or her 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 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.
• 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 considers the child to be of sufficient age to express preference.
• The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
• Any other factor considered by the court to be relevant to a particular child custody dispute.

What Kinds Of Custody Are There?

There are two kinds of custody, sole and joint custody.  These are further broken down into legal and physical custody.  

Sole custody means that only one parent has custody.  Joint custody means that both parents share custody. 

Legal custody means that you have the right to make important decisions about your child.  Physical custody means that your child will live with you at least some of the time.

Both legal and physical custody can be awarded to one parent (sole custody) or to both parents (joint custody).  What this means is that if the parents have joint legal custody, then both parents cooperate and agree on the major decisions that affect the child.  If the parents have joint physical custody, the child will live with each parent for set periods of time.  

The Child’s Preference

Up until August of this year, the parents were allowed to request that the child not be asked his/her preference as to where they want to life.  The court also had discretion on the appropriate age to ask the child of the parents didn’t stipulate.  Recent changes to the law have done away with this.

Today, the court is requied to interview children at age 9, but there is still some discretion for children between the ages of 6 to 9. 

Why Call Garfield?

Custody battles are not fun and I have personally been on both sides of this issue in my life.  I know the emotional rollercoaster you will be on.  I also know the effects on the child or children involved.

Child custody issues should not be taken on without an attorney. There is just too much at stake.  You will need an aggressive attorney that will fight for the you and the best interests of your child.  

Don’t settle for something less.  I had lamb for an attorney when I fought for custody.  This works if there is mutual respect on both sides of the table, but it is not very effective when your opponent is going for the jugular.  

There are also times when you will have to reign in the aggrssion and compromise.  And, it’s always best to come to as many fair compromises as possible because going to trial will get expensive.

 With so much at stake, take my advice,  Call Garfield.