Child Custody and Visitation Laws in Michigan

Learn about custody and visitation in Michigan.

The Differences Between Legal and Physical Custody

Many people believe custody boils down to: one parent gets the kids, the other doesn’t, end of story. In reality, it’s not that simple. The fact is, there are various aspects of custody and many types of parenting schedules that can ensure both parents spend quality time with their children.

“Legal” custody refers to the right to make the most important decisions regarding the child’s health, welfare, and upbringing, like education, religion, and non-emergency medical care. “Physical” custody generally refers to where the child will live.

Legal custody and physical custody can, in turn, be broken down into “sole” custody and “joint” custody. Sole legal custody usually means only one parent has decision-making authority. Joint legal custody gives both parents a say in child-rearing decisions.

With sole physical custody, the child resides with one parent. Joint physical custody means the child resides with each parent for certain periods, which may range from a few days a week, to weeks or months at a time.

The Best Interests of the Child

In every state, a child’s welfare is the key consideration in custody disputes. Michigan law provides a list of factors for a judge to consider when determining “the best interests of the child.” Some of these are:

  • the love, affection, and other emotional ties that exist between the parents and the child
  • the parents’ ability and willingness to give the child love and guidance, and continue the education and raising of the child in that child’s religion or creed, if any
  • the parents’ ability and willingness to provide the child with food, clothing, and medical care
  • the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
  • the moral fitness of the parents, as well as their mental and physical health
  • the parents’ ability and willingness to facilitate and encourage a close and continuing parent-child relationship
  • occurrences of domestic violence, regardless of whether the violence was directed against, or witnessed by, the child, and
  • any other factor the court considers pertinent.

How Michigan Courts Address Custody

Michigan custody statutes address legal and physical custody, as well as joint custody. While the laws don’t specifically define sole custody, the Michigan Supreme Court’s custody guideline states that “sole custody occurs when primary physical custody and legal custody are given to one parent.” Typically, a court will award sole custody to a parent when it believes the parents won’t be able to work together in raising their child.

Divorce law today views joint custody as the ideal way to foster a nurturing environment for children, after divorce. In Michigan, joint custody can encompass legal custody, physical custody, or both.

The court has the discretion to address joint custody on its own. But it must consider it if either parent requests it. Additionally, if the parents agree on joint custody, the court must allow it, unless the judge determines it isn’t in the child’s best interest.

In deciding whether joint custody best serves the child’s interest, the court must consider the factors listed in the previous section of this article. It must also determine whether the parents will cooperate with each other and generally agree on the important decisions regarding the child’s welfare.

Note that having joint physical custody doesn’t automatically mean the parents have joint legal custody as well. The court can allow the child to reside with each parent for periods of time, but still designate only one parent as the primary decision maker.

Be aware that, in awarding custody, the law permits the court to take into account the child’s reasonable preferences. But this is only the case when the court considers the child old enough to express a preference.

Parenting Time (Visitation) in Michigan

When a child is residing with one parent, the court ordinarily provides parenting time (visitation) for the other parent. However, as with custody, the court has to determine that parenting time is in the child’s best interest.

There is no set parenting time arrangement. The ultimate determination usually depends on the circumstances of each case. The best scenario is one that reasonably accommodates the parents’ and the children’s schedules. If the parents agree on visitation terms, the court must issue an order incorporating those terms, unless the court finds the arrangement isn’t in the child’s best interest.

Michigan law sets out several factors for a judge to take into account when awarding parenting time, such as:

  • any special circumstances or needs of the child
  • whether the child is a nursing child, who is less than six months of age, or less than one year of age if the child receives substantial nutrition through nursing
  • the reasonable likelihood of abuse or neglect of the child during parenting time
  • the reasonable likelihood of abuse of a parent, resulting from exercising parenting time
  • the effect traveling for parenting time might have on the child
  • whether a parent can reasonably be expected to abide by the parenting time court order
  • whether a parent has frequently failed to exercise reasonable parenting time
  • the threatened or actual detention of the child with the intent to keep or conceal the child from the other parent, and
  • any other pertinent factors.

If the court determines that being alone with a parent could endanger the child, the judge can order “supervised” parenting time. In situations where the parent has been guilty of conduct such as child abuse or domestic violence, any parenting time will usually take place in the presence of personnel of a state-sanctioned agency. In less egregious cases, the parenting time might be overseen by a trusted family member or friend. You might see this where the parent has a drug or alcohol problem, assuming the parent isn’t violent.

Can Courts Modify Custody and Visitation Orders?

Custody and parenting time are fluid issues, meaning they’re subject to change, even after the divorce. However, a requested modification must be in the child's best interests. The parent seeking the modification must show that there’s proper cause for the request, or there’s been a change in circumstances since the court issued the order. However, to amend the existing order, the judge must find that the proper cause or change in circumstances is sufficiently significant. Also, note that proper cause and change in circumstances aren’t mutually exclusive. A change in circumstances may constitute proper cause, and vice versa.

To learn more about the complex issues of custody and parenting time, consult with a knowledgeable divorce lawyer.

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