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.
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:
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.
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:
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.
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.