Can Children Express Preference in Michigan Custody Proceedings?

Getting divorced is difficult enough, but it's even harder when you have children. When parents are separating or divorced, their arrangements for coparenting are among the most challenging decisions they have to make—or have a judge make for them. Usually called physical and legal custody, those decisions include where the kids will live most of the time, how often each parent will see them, and how parents will make important decisions concerning their children.

In this emotional and legal process, the children's opinions can sometimes get lost. But the laws in many states require judges to consider a child's preference when they're making decisions about custody.

This article explains how children's preferences affect judges' custody decisions in Michigan, whether during divorce or in any legal custody proceedings (whether the parents are married or not).

Overview of Custody Decisions in Michigan

A judge will have to make decisions about child custody if the parents can't agree between themselves. In Michigan, the overriding principle in any custody dispute is that the child's best interests control.

When deciding what's in a child's best interests, Michigan judges must consider all of the following factors:

• the love, affection, and other emotional ties between the parents and child
• each parent's ability to give the child love, affection, and guidance, and to continue the child's education and rearing in the child's religion
• 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
• either parent's history of domestic violence, whether the the child was the victim or simply witnessed the violence
• each parent's willingness to encourage a relationship between the child and the other parent (except that judges shouldn't penalize parents for taking any action to protect the child from abuse by the other parent)
• the child's reasonable preference, if the judge believes the child is "of sufficient age" to express that preference, and
• any other factor the court deems relevant.

(Mich. Comp. Laws §§ 722.23, 722.25 (2022).)

When Are Children Old Enough to Express Their Custody Preference?

It's a common misconception that once children reach a certain age, they may decide which parent they'll live with most of the time. First of all, a Michigan judge won't even consider a child's custody preference unless the judge finds that the child has the ability to form and express a reasonable preference regarding custody and visitation.

As a general rule, the judge will presume that a child who is over the age of six is able to express a reasonable custody preference. But that doesn't mean all children who meet that age threshold can do so. Nor does it mean judges will never consider the opinion of younger children. Some children are mature beyond their years, and individual circumstances may compromise older children's ability to form a reasonable, unbiased opinion. For instance, one Michigan court found that a 12-year-old boy's "fragile emotional state," combined with his mother's significant efforts to sway his opinion, meant that he was unable to form a reasonable custody preference. (Maier v. Maier, 874 N.W.2d 725 (Mich. App. 2015).)

Once a judge has decided that a child is able to form a reasonable opinion about custody and visitation, the judge must then decide whether the child has expressed a preference that's reasonable. This doesn't mean that the child must demonstrate detailed thought or critical analysis behind the expressed preference—just that it isn't for arbitrary or superficial reasons. (Pierron v. Pierron, 782 N.W.2d 480 (Mich. App. 2010).)

For example, a judge isn't likely to give weight to a child's preference if the child simply wants to live with the parent who's more lenient or has a nicer house. On the other hand, judges will probably consider the opinion of a child who wants to live with the parent who cooks, helps with homework, and attends medical appointments.

Even when a judge determines that a child has expressed a reasonable custody preference, that doesn't mean the child's opinion will decide the issue. The judge will simply give some weight to the child's preference, along with all of the other factors (listed above) that must be considered. (Bowers v. Bowers, 475 N.W.2d 394 (Mich. App. 1991).)

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

In Michigan, judges usually won't require a child to testify in court, because it can be psychologically harmful to make children to choose sides in front of their parents. Instead, a child who's considered mature enough to express a reasonable opinion about custody will generally be interviewed away from the parents, either by the judge or a court investigator.

Judge's Interview of Child About Custody Preferences

When it's appropriate, the judge may speak to the child informally, in the judge's chambers and without the parents in the room. Judges may allow the parents' lawyers to sit in on the interview, but they don't have to do so.

Custody Investigations by Michigan's "Friend of the Court"

More commonly, a branch of the family court, called the "Friend of the Court" (FOC), will conduct an investigation on custody disputes. Typically, a Friend of the Court investigator (usually a trained social worker or attorney) will make every effort to interview the child, unless it's obvious that the child is too young to express a reasonable custody preference. The investigator will also meet with each parent individually.

At the conclusion of the investigation, the investigator will prepare a report and recommendation on custody for the judge to review. The report will describe the investigator's findings on each of the best interest factors that must be considered in custody decisions, including the child's reasonable preference. The report will not be a public record, but it must be made available to the parents and their lawyers.

Any parent who objects to the FOC recommendation may ask the judge to hold a hearing on the custody issue. But a parent must make that request within 21 days after the report and recommendation was made available to the parents. (Mich. Comp. Laws §§ 552.507, 552.517d (2022).)

Note that in some circumstances, you may opt out of FOC involvement in your custody case. In that case, a judge will hear and decide your custody dispute in a longer, more formal process. Learn more about FOC investigations and other services.

When Can a Child Refuse Visitation in Michigan?

Until children turn 18 or become legally emancipated, they don't have the right to refuse visitation that's required under a court's custody order. Both children and their parents must comply the order. So if a child is refusing to cooperate with visitation, the parent with primary physical custody has the responsibility to get the child to obey.

Of course, as any parent of an adolescent knows, it can be difficult to get teenagers to do something they absolutely refuse to do, especially as they get older. When you find yourself in this situation, you could try counseling or mediation services through the FOC (more on that below).

You could also file a motion with the court to request a change in the existing parenting time orders. However, you'll have to prove that there's been a change of circumstances that would justify the modification you're requesting. (Mich. Comp. Laws § 552.17 (2022).)

How Can Mediation Help in Michigan Custody Disputes?

You may avoid lengthy and expensive court battles over custody disputes if you and your child's other parent can reach an agreement on the issue. And when you're having trouble agreeing on your own, custody mediation may be a way to work through your obstacles. Although mediation is between the parents, mediators might interview the children if it's appropriate and would help the parents agree on a new or changed parenting plan.

Some courts will require parents to get mediation services (or another type of alternative dispute resolution) from the FOC whenever they have a custody dispute. As opposed to when the FOC conducts an investigation, the FOC mediator won't make a recommendation on custody if the parents haven't reached an agreement during the process.