There are two types of custody. First is “legal” custody, which involves the ability to make decisions regarding the child’s education, health and welfare. Predominantly, courts will order joint legal custody, giving both parents the right to make these decisions.
Frequently, the most difficult issue in a divorce is determining “physical” custody. The parent who has physical custody is the person who actually raises the child in their home. The court’s decision must be in the best interest of the children, not the parents.
When the parties have joint legal custody, it means that will consult together on major policy decisions relating to the health, education, and welfare of the child. Specifically, it means that each party is entitled to complete access to the child’s medical and school records, that each party has the right to be advised promptly of any serious illness, emergency, or any other significant event that arises.
However, parties need to understand that joint legal custody does not give a party the right to be involved in every decision regarding the child’s life. When a parent is exercising their parenting time, they have the right to make decisions about the children’s activities, meals, etc. while they are in their care.
There is no such thing as a “standard” custody/parenting time arrangement. While we now see nearly 50% of divorces with 50/50 parenting time, it's important for the parties to be flexible in determining a schedule that works around their work schedules and is in the best interest of the children.
There is a movement in the legislature to remove the word “custody” from Michigan’s divorce statutes. Those in favor believe that too many divorcing parents are more concerned with “getting custody” than doing what is in the best interests of the children. They believe if you remove the “custody battle,” it frees up the parents to focus on dividing the parenting time each has with the children.
Similarly, parties can agree to joint physical custody even if the children reside primarily with one parent and spend a majority of their time in one parent’s care.
At Pitler Family Law & Mediation, P.C., we believe that it is in the best interest of the children to have two parents actively involved in their lives. Therefore, we encourage our clients to negotiate a parenting time schedule that allows for both parents to spend a substantial amount of time with the children.
If the parties cannot agree on which party shall have physical custody, the courts will decide. In making a determination regarding custody, Michigan law provides for twelve factors to be used to determine “the best interest of the children:”
The court will weigh each of these factors individually and determine which are more favorable to each parent. Frequently, the court will find that both parents are equal on many of the factors.
If the parties do not agree on a custodial agreement, the issue is first usually referred to the Friend of the Court (FOC) to investigate the issue and to make a recommendation. In doing so, the parties will initially meet with a FOC counselor. If necessary, the counselor may also interview other family members, teachers, social workers and other people who can provide information to the counselor regarding the family. In some situations, the counselor may meet with the children. Unfortunately, since most FOC offices are understaffed, they do not have the time to conduct an exhaustive evaluation. The counselor will then make a recommendation for custody by applying the twelve “best interest” factors.
If one or both parties disagree with the FOC recommendation, they will file an objection with the court. The attorney for a party that disagrees with the recommendation must then begin to build a case to prove to the court that it is in the best interests of the children for their client to have custody. This is when a divorce case will begin to get very expensive.
The first step in defeating an unfavorable FOC recommendation is to hire an expert, a private psychiatrist or psychologist to conduct an investigation. This evaluator will meet with each party individually in a clinical setting and will usually observe each parent interacting with the children. They may also interview family members, teachers, doctors, social workers and other people who can provide information about the parents and the children.
Once one party has retained an expert, the other party will usually retain their own psychiatrist or psychologist as an expert to testify on their behalf.
Once the divorce is completed, modifying a custody arrangement can be difficult in Michigan. When making an initial custody determination, the courts will weigh the “best interest” factors and award physical custody to the parent who fares better in the analysis.
However, once there is an established custodial relationship, the court must find that there is “clear and convincing” evidence that it is in the best interests of the children to change custody, which is a higher standard. Under Michigan divorce law, 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.
Regardless, if a parent believes that it would be in the best interests of the children to change custody, they must file a Motion with the court.
The Friend of the Court (FOC) is a county based organization that assists the court in issues related to children. In divorces and in cases where the parents were never married, the FOC conducts investigations and makes recommendations in matters of child custody, child support, parenting time and other related issues.
The FOC staff includes specialists in matters related to child related issues. Many of the staff are trained counselors and have degrees in social work and child development. They have been trained to try and identify and resolve any disputes related to children. Unfortunately, like many government offices, the Friend of the Court offices are severely underfunded and understaffed and ill equipped to handle their large caseloads. Therefore, the staff is frequently unable to give each case the attention that it deserves.
Each Family Court Judge has one or more FOC Referees that assist the judge in matters related to children. If a hearing on a custody, child support, parenting time or related issue is required, the hearing will usually be held in front of the Referee, who will make a ruling. If either party disagrees with the Referee’s ruling, they will have to file an objection and schedule another hearing in front of the Judge, who will make a final decision.
Once physical custody is established, any disputes related to custody or parenting time usually start in the FOC.
