Can Children Express Preference in Michigan Custody Proceedings?

In Michigan, judges evaluate a specific set of factors when creating a custody award, and one of those factors may include a child's preference.

Although it’s often difficult when a couple separates, it’s even harder when the couple has children. Deciding the custody arrangement can be the most challenging task for separating parents. Sometimes, the child’s opinion on custody can get lost in the process. Many states’ laws, however, require judges to consider a child’s custodial preference when determining child custody.

This article will explain how a child’s preference affects custody in Michigan. If you have additional questions about the effect of a child’s custodial preference in Michigan after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Michigan

A judge will decide child custody in cases where the parents can’t agree on their own. In Michigan, the court must consider several factors when determining custody, including the following:

  • the love, affection, and other emotional ties between the parents and the child
  • each parent’s ability to give the child love, affection, guidance, and continue the education and religion of the child
  • each parent’s ability to provide the child with food, clothing, and medical care
  • the stability of each parent’s home
  • each parent’s moral fitness
  • each parent’s physical and mental health
  • the child’s home, school, and community history
  • each parent’s willingness to encourage a relationship between the child and the other parent
  • either parent’s history of domestic violence
  • the child’s preference, if the child is of sufficient age, and
  • any other factor the court deems relevant. (Mich. Comp. Laws § 722.23)

When Will the Court Consider a Child’s Preference?

When a child is of sufficient age to express a preference, the court must consider the child’s opinion before deciding custody. However, the court will only interview a child if the judge believes the child is old enough and mature enough to express an opinion.

It’s a common misconception that once a child reaches a certain age, that child can decide which parent should have custody. On the contrary, if the court believes interviewing the child is appropriate, the judge will weigh the child’s opinion equally with the other above-listed factors.

If the parents are virtually even in the other custodial factors, the court may use the child’s preference to break the tie. If, however, one parent having custody is clearly in the child’s best interest, the child’s opinion won’t sway the judge’s decision. (Mich. Comp. Laws § 722.25 (1))

A child’s preference must be reasonable for the judge to give it weight in the custody decision. This doesn’t mean that the child’s preference has to include detailed thought or critical analysis, just that the child’s opinion isn’t for arbitrary or superficial reasons. For example, a court won’t afford much weight to a child’s preference if the child chooses the more lenient parent or the parent with the nicer house. On the other hand, judges will weigh strongly the opinion of a child who wants the parent who cooks, helps with homework, and attends medical appointments.

Do Children Have to Testify About Their Custodial Preferences in Court?

In Michigan, judges usually won’t require a child to testify in court, since it can be psychologically harmful to children to sit in front of their parents and state whom they prefer.

Instead, judges will speak to children informally, in court chambers to discover their custodial preferences. The court won’t allow parents to be present for the conversation. Judges aren't required to allow attorneys to be present for the interview either, although sometimes, a judge will permit them to sit in on the meeting. Michigan courts aren’t required to have court reporters present during these interviews, but will sometimes have them present to record everything that the child and judge discuss.

More commonly, however, the judge will ask a branch of the family court, called the Friend of the Court, to interview parents and children in custody disputes. During the interview, a Friend of the Court investigator (usually a trained social worker or attorney) will meet with each parent individually and with the child, and if necessary, will meet with the child separately. The investigator will weigh all of the best interest factors and prepare a report for the judge to review. If the investigator considered the child’s preference, the report would state that the child gave an opinion, but will not include the details.

Although each county in Michigan has different procedures, most will utilize a Friend of the Court type entity to help with custody decisions. The investigator typically sends a written recommendation, listing findings for each of the best interest factors, to the parents, attorneys, and judge in the case. Each party usually has 21 days to object and ask for the judge to decide differently. If no one objects, the court will adopt the recommendation into a court order. If a parent disagrees with the proposal, the court will schedule a hearing with the judge.

If you have additional questions about the effect of children’s custodial preferences, contact a Michigan family law attorney for help.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Considering Divorce?

Talk to a Divorce attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you