Custody in the State of Michigan is governed by the Michigan Child Custody Act of 1970, Michigan Complied Law (MCL) 722.21. The Act codifies many of the factors used by the court to determine custody. Two key issues to any custody dispute is whether a “custodial environment” has been established with a particular party, and/or whether a particular custody arrangement is in the “best interest” of the child.

Key Factors in Determining Custody

To determine whether a “custodial environment” has been established with a particular party, the Michigan Child Custody Act states that:

“the custodial environment of a child is established if, over an appreciable time, the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”

• The love, affection and other emotional ties existing between the parties and the child.
• The capacity and disposition of the parties involved to give the child love, affection and guidance.
• The parties’ ability to provide the child with food, clothing, medical care and other remedial care.
• The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining that environment.
• The permanence, as a family unit, of the existing or proposed home.
• The moral fitness of the parties involved, as well as their mental and physical health.
• The home, school and community record of the child.
• The reasonable preference of the child, if the court feels that the child is of sufficient age to give an opinion.
• The willingness and ability of each of the parties to encourage a continuing parent/child relationship between the child and the other party.
• Instances 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 of relevance to a particular child custody dispute.

Custody Arrangements

While there are a variety of custody arrangements available to parties and to the courts, there are three primary arrangements that are most typical.

• Sole physical and sole legal custody is very common and it means that the child lives with one party who will be responsible for making major decisions regarding the child. This type of arrangement is recommended in situations where the parties are totally incapable of cooperating with one another on child care matters. If one party is granted sole physical custody, the other party can request reasonable parenting time. The non-custodial party may also be responsible for child support.
• Another type of arrangement is that of sole physical and joint legal custody, which allows the child to reside with one party, while giving both parties the right to make medical, educational, religious or other major life decisions for the child. There must be a level of communication and co-operation between the parties in order for joint legal custody to be successful. The decision to award physical custody to one party over another is often the result of the non-custodial party’s work schedule, or perhaps an unorthodox living arrangement that makes it inappropriate or impractical for the child to reside in both households.
• The third type of arrangement is that of joint physical and joint legal custody. Where there is joint physical custody, the child alternates living with each party, although this does not always mean both parties get equal time with the child. Some parties opt for a split week arrangement, meaning that the child may reside with one party Monday through Thursday, and with the other party Friday through Sunday. Other options might be to alternate custody every two weeks or every other month. These types of arrangements can be as flexible as the parties involved. As stated earlier, joint legal custody means that both parties will have a voice in the major life decisions affecting the child (such as medical, educational and religious decisions, etc.). Joint physical and joint legal custody is awarded in situations where the parties have a good rapport, or are at least able to communicate effectively and cooperate with each other in the best interest of the child.

Resolving Custody Disputes

Custody disputes can arise for a number of reasons and there are numerous ways to resolve those disputes. One such avenue involves the Friend of the Court, whose role, in many instances, is to provide alternative dispute resolution or to facilitate court ordered mediation among the parties regarding custody or parenting time disputes.

In Alternative Dispute Resolution, the power to make a decision resolving the conflict lies within the hands of the parties who have a personal interest in the outcome versus having the dispute solved by a judge or a third party. Another avenue is Court Ordered Mediation, where a Friend of the Court employee is appointed as mediator and, if no agreement is reached between the parties, the mediator will make a recommendation to the court. If both parties accept the mediator’s recommendation, it will be entered as an order. If either party rejects the mediator’s recommendation, or some portion of it, the case will go to trial.

Because there is typically no cost for Friend of the Court mediations, this is an inexpensive approach to resolve the dispute rather than going to trial.

Custody disputes can be very expensive and emotionally draining, not only for the adult parties involved but also for the child. If both parties are able and willing to focus on the best interest of the child, many of the disruptive factors involved in a custody matter can be avoided.

For further information regarding these matters, please contact Ms. Nance at 248.740.5686 or click here to send an email.