Process for Determining Custody

Process for Determining Custody

Understanding the Child Custody Process

Legal custody, physical custody, joint custody, sole custody, change in circumstances, established custodial environment, best interest factors: if this is the first time that you are confronted with a child custody situation, these terms may be confusing, scary and overwhelming.

At Kraayeveld Family Law, our Grand Rapids family lawyers are here to help, to explain these terms, and say what they really mean and how all of this is going to impact you and your children. Let’s start with the terms.

Types of Custody

Understanding the Difference Between Legal and Physical Custody in Michigan

A parent with legal custody can make major decisions regarding his or her child’s schooling, religious upbringing, and medical care. Joint legal custody is very common. This means that the parents must cooperate regarding major decisions. As parents with joint legal custody, you will jointly make the big decisions for your children; it does not mean that you get to jointly decide which clothes your child will wear on the first day of school. In certain situations, one parent may be granted sole legal custody if the other is deemed unfit or a danger to the child.

Physical custody is just that. It refers to where the child is actually living. When a parent has sole physical custody or primary physical custody, it means that the child is mostly living with that parent. If parents have joint physical custody, the child lives with each parent for similar amounts of time. Joint physical custody does not necessarily mean that each parent has an exact 50% of the available parenting time.

How Custody is Established in Michigan

A child custody case can be started as part of a divorce proceeding or with the filing of a petition if the parents were never married. Parents can reach an agreement regarding legal and physical custody, and then if the judge finds that the agreement is in the child’s “best interest”, the judge will sign an agreed-upon order.

In most cases, a temporary order will be entered during the six-month waiting period before the divorce may be finalized and while a child custody investigation is ongoing. When the judge makes a ruling about custody, he or she will review what is best for the children. Michigan law provides 12 best interest factors:

1. The love, affection, and other emotional ties existing between the parties involved and the child.

Questions that the judge may consider:

  • Does one parent show more respect, love, and affection towards the child?
  • If the child has a problem, which parent does he or she go to?
  • Which parent is more available to the child to talk?

2. 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.

Questions that the judge may consider:

  • How does each parent communicate love to the child?
  • Is the parent involved in church or extracurricular activities that benefit the child?

3. 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.

Questions that the judge may consider:

  • Is one parent deliberately earning less than that parent is capable of earning?
  • Has the parent used his or her income to benefit the child or have they spent their money foolishly?
  • Who purchases items for the child?

4. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

Questions that the judge may consider:

  • Has a parent moved frequently; especially due to evictions, foreclosures, or broken relationships?
  • Has a parent had numerous relationships, live-in relationships, divorces?
  • Has a parent moved frequently causing changes in schools for the child?

5. The permanence, as a family unit, of the existing or proposed custodial home or homes.

Questions that the judge may consider:

  • Are there currently many non-family members residing in the home?
  • What type of relationship does the child have with his or her mother or father’s significant other?

6. The moral fitness of the parties involved.

Questions that the judge may consider:

  • Is either parent using illegal substances? Does either parent promote or rationalize criminal behavior to the child?
  • Does either parent reside with someone who routinely and excessively abuses alcohol?
  • Has either parent been involved in extramarital affairs of which the child is aware?

7. The mental and physical health of the parties involved.

Questions that the judge may consider:

  • Does either parent suffer from a mental or physical health problem that would prevent them from caring for the child?

8. The home, school, and community record of the child.

Questions that the judge may consider:

  • Which parent does homework with the child?
  • Which parent goes to parent-teacher conferences?
  • Which parent enrolls the child in and attends extracurricular activities?

9. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

Questions that the judge may consider:

  • If the child is old enough the judge may allow the child to express his/her opinion on with whom he/she wishes to live.

10. 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.

Questions that the judge may consider:

  • Has a parent insulted or berated the other parent in the presence of the child?
  • Does either parent allow the child to make plans during the other parent’s scheduled time without consulting with the other parent first?
  • Has either parent denied parenting time?

11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

Questions that the judge may consider:

  • Has any violence occurred in the home involving either parent or the child?
  • Does one parent have a history of domestic violence in a previous relationship?

12. Any other factor considered by the court to be relevant to a particular child custody dispute.

Questions that the judge may consider:

  • Are there stepchildren or half-siblings that should be kept together?
  • Are there any special relationships with third parties that could be considered?
  • Does the child have special needs?

What Happens When Parents Disagree Over Custody?

If parents cannot agree over who should receive custody of their children, the judge will make a decision after hearing testimony from both parties and their witnesses. While the parents wait for a trial date, they may perform discovery (asking each other and third parties questions to be answered under oath), often a child custody investigation is ordered, sometimes mental health evaluations are ordered, and both parties prepare for the custody trial.

Not many cases go to trial. Trials are expensive and emotionally draining. Even so, parents want what is best for their children, and if that cannot be obtained by agreement, the Grand Rapids child custody attorneys at Kraayeveld Family Law have the experience to proceed to trial and obtain the best results for our clients.

Contact Our Child Custody Attorneys in Grand Rapids for Assistance

If you are faced with a child custody dispute, it is best if you contact a Grand Rapids family lawyer before you are served with the divorce or custody documents so that we can prepare your case thoroughly to get you the results that are best for you and your children.