Custody & Visitation
At the Law Office of Nathan G. Frazier, we understand that children are one of the most important things in our lives. Usually, both moms and dads need to play a strong role in the lives of their children. Occasionally, you may need to really fight for what is in best interests of your children. We are happy to discuss all of your legal options in depth at our consultation.
Child Custody & Visitation
Who gets custody?
The issue of who will be the custodial parent after a divorce or parentage action can be very emotional and traumatic for the parents. This is truly unfortunate since most of these parents will be co-parenting for many years to come. I've heard judges say that the best decision about custody is usually made by the parties and that leaving the decision to a judge who has little knowledge of the family dynamics is a bad idea. I could not agree more. Early mediation can help parents to make decisions before they become polarized or feel backed into a corner that each needs to defend.
There are really two components of custody. Legal custody determines which parent shall make the major decisions for the child during the child's minority. Physical custody determines who will be the predominant custodial of the child.
What is Legal custody?
Where one parent shows little interest in the child, a court might award sole legal custody to the other parent. An award of sole legal custody occurs more frequently in a paternity case. This may have something to do with the fact that the father may be unrepresented by counsel. Another instance where sole legal custody might be awarded to only one parent is where the parents have demonstrated no capacity for making joint decisions in a civilized manner. But, generally, Michigan courts will award joint legal custody. It's important to realize that every case is dependent upon it's particular facts. It is the unique facts relating to a family that may warrant a deviation from the normal situation, where both parents have joint legal custody.
What is Physical custody?
Physical custody usually means that one parent will be the primary physical custodial of the child or children. However, joint physical custody is possible, particularly where both parents are highly invested in their children's lives. More and more, I'm seeing the use of the term "shared care arrangement." And, in fact, the terms "joint custody" and "shared care arrangement" can really mean anything that the parties intend them to mean. Sometimes, these terms can help to resolve custody disputes simply by not making one parent feel inferior to the other.
How a court determines who will have custody if the parties cannot agree. If the parties are unable to agree on which shall have custody or whether they can or will share custody, the court is bound to decide the issue using the Michigan Child Custody Act, specifically that section that defines "the best interests of the child." Each case is highly dependent upon its specific facts.
What is the "Best Interests of the Child"?
If you are involved in a child custody dispute, you should become familiar with the Child Custody Act and study and be prepared to discuss the following factors:
- 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 continuation of 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 deems the child to be of 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.
- Domestic violence, whether or not it occurred in the child's presence.
- Any other factor considered by the court to be relevant to a particular child custody dispute.
What is Joint Custody?
The parents must be advised that they have a right to seek joint custody if they are unable to agree. The statute says:
- At the request of either parent, the court shall consider an award of joint custody and shall state why joint custody may or may not be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
- a. The factors enumerated above.
- b. Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
- If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record that clear and convincing evidence affecting the welfare of the child dictates otherwise.
- If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
- During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.
- If there is a dispute regarding residence, the court shall state on the record, in writing, the basis for a residency award.
- Joint custody shall 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 sufficient resources, the court may order modified support payments for a portion of housing expenses, even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
- As used in this section, "joint custody" means an order of the court in which one or both of the following is specified:
- a. That the child shall reside alternately for specific periods with each of the parents.
- b. That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
What About Parenting Time (Visitation)?
The noncustodial parent is usually awarded parenting time. Although judgments and orders may order general parenting time, leaving it up to the parties to decide the dates, it's usually best to provide specific parenting time. Parents can always remain flexible and change times if need be, but a parent is always able to enforce specific parenting time through the courts if things go wrong. Usually, parents make arrangements to share cost of transportation, particularly if long distances are involved. Michigan law requires judgments of divorce to state that the minor child may not be permanently removed from the jurisdiction of the court without the court's approval. Then, if a custodial parent wants to move from Michigan with the child, that parent is required to petition the court for an order.
Parenting time orders may be modified if a parent can show a change in circumstances. If a parent wrongfully denies parenting time, the law allow for make up parenting time. Repeated denials can lead to a contempt of court action against the offending parent, resulting in a fine or jail term. Illness of a child or a parent's failure to pay child support are not acceptable reasons to deny parenting time.
What Are Model Parenting Plans?
Some States have developed Model Parenting Plans in an effort to help parents work out the best possible parenting time schedules for their children. These model plans have been recommended by developers who are child development specialists, lawyers and others who have had valuable training, education, experience, and expertise in what will work best for children when their specific developmental stages are taken into consideration.
Can You Modify Child Custody Orders?
These orders are modifiable. However, parents who reside in Michigan must bear in mind that the trial court will not exercise jurisdiction to modify the prior custody order unless the parent seeking the modification can prove by a preponderance of the evidence (i.e., by better than 50% of the evidence) that there is either a substantial "change in circumstances" or substantial "good cause" that justifies the court taking another look at the situation. These cases tend to be extremely fact-driven. The particular facts of your case may compel the court to take action. However, unless the changes are significant, and not just part of the normal growing up of the child, the court doesn't have to conduct a hearing on a motion to change custody. It would be a mistake for you to settle your custody case believing that you have unlimited freedom to come back later to "fix things." It's not easy to "fix" something that was done wrong earlier.
When deciding whether to modify an existing custody or parenting time order, the court will consider how long the child has lived in a stable custodial environment and what is in the best interest of the child. Many people believe that when a child reaches a certain age -- usually 14 -- that the child gets to choose which parent he or she wants to live with. This is a common misconception. While it is certainly important, the child's preference is just one of the factors to be considered in the 11 specific child custody factors cited above.
What About Grandparent Rights?
Although parents are granted the fundamental Constitutional right to make decisions concerning the rearing of their child, grandparents are very important to the family and frequently provide a stable and loving figure in a child’s life. Consequently, such grandparents are often entitled to reasonable visitation rights. The key, as always, is whether such visitation rights would be in the best interest of the child.