Currently it is considered the "norm" for parties to share joint legal custody. Increasingly parties are also agreeing to share joint physical custody, which does affect (reduce) the amount of child support a party is required to pay. However, courts cannot blindly accept the parties' stipulation. The court must independently agree that the custody arrangement is in the best interests of the child.
If the parties cannot agree on custody issues, they need a good attorney to skillfully argue their position to the court.
In October of 2008, the Michigan Child Support Guidelines changed to reflect the actual number of overnights in determining child support. Before this, there was a big difference in the amount of child support between the three levels of custody: primary custody, shared responsibility aka 2/3 - 1/3 custody, and joint or "50-50" custody. The change is a big improvement, because it encourages parents to focus on the best parenting time arrangement for everyone instead of trying to fit within one of the three scenarios in order to get more, or pay less, child support.
Nevertheless, child support is still based solely on the number of overnights a child has with each parent. This is odd, considering that all of a child's eating, drinking, and active time occurs while they are awake, and that is what costs the money! Thus even under the "new and improved" Support Guidelines, one parent could have the kids every day of the year until 9 p.m., and still have to pay child support to the other parent, based on overnights. Clearly the formula is still imperfect.
At LADY4JUSTICE®, we encourage parents to decide on custody based on what works best for the entire family. We remind our clients that they are free to deviate from the Support Guidelines if it is in the best interest of the child (for example, in the above scenario where one parent has the kids until 9 p.m. every night while the other has them overnight and sees them off to school, the parents can agree to reduce the amount the first parent is "required" to pay, in consideration of the fact that they are providing for the children's needs during most of their waking hours.) Cooperative co-parenting is always the best for all concerned, and it pays enormous dividends.
Courts do their best to determine the optimum custody arrangement. Ideally, however, you and your spouse are in the best position to know what is in your children's best interest. Working it out between the two of you with the help of your attorneys is the best way.
Courts are required to look at specific factors involving the best interest of the child, which has been crystallized by statute into twelve factors. The Twelve "Best Interest" Factors are:
Can I modify a child custody order? If so, how? Yes. An existing custody order can be modified by filing a motion for change of custody. The first question courts look at is whether there is an established custodial environment. Courts look at duration, parental care, love, discipline, guidance, and attention to the child's needs. A party challenging an established custodial environment has a heavy burden of proof; first, they must show that there has been a change of circumstances. Second, they must demonstrate, by clear and convincing evidence, that a change of custody is in the best interests of the child. The purpose of this high burden of proof is to prevent unwarranted and disruptive changes in a child's life.
Temporary custody orders do not, of themselves, establish a custodial environment, regardless of how long they have been in place. But if a court finds there is an established custodial environment, it makes no difference whether that environment was established by court order (temporary or permanent), without court order, or even in violation of court order. The best interests of the child, their stability and well-being, are paramount.
The court can change custody if it finds "proper cause shown" or that it is in the best interests of the child. Only one published case (Vodvarka v Grasmeyer, 259 Mich App 499 ) details what these terms mean. A motion for change of custody is a complex proceeding which requires the assistance of a skillfull attorney.
Can Third Parties (such as other family members) Challenge Custody?
There is a presumption in favor of parents in all custody disputes. If a third party, such as a relative seeks custody of a child against their parents, the third party must show by clear and convincing evidence that it is in the child's best interest. Third parties have standing (i.e., the right to seek custody) in limited situations, such as if the custodial parents are dead or missing. Third parties may also seek custody under the Guardianship statute. Call us for more information on this growing area of law.
In DeRose v DeRose, 469 Mich 320 (2003), the Michigan Supreme Court declared the Grandparent Visitation Statute (MCL 722.27b) unconstitutional because it did not require the court to defer to a fit parent's decision regarding denial of grandparent visitation. But on January 3, 2005, the Grandparent Visitation Bill was unanimously passed by the House and Senate, and signed into law by Governor Granholm. It incorporates the DeRose holding by requiring the court to defer to a fit parent's decision whether to allow grandparent visitation. It is now presumed that a fit parent's decision to deny grandparent visitation does not create a substantial risk of harm to the child's mental, physical, or emotional health. A grandparent must overcome that presumption and prove by a preponderance of the evidence that the parent's decision to deny the visitation creates a "substantial risk of harm to the child's mental, physical, or emotional health."
Such moves (called a change of domicile) are achieved by filing a motion for change of domicile, and must be approved by the court. If such a move amounts to a change in the established custodial environment, then it is necessary to prove to the court by clear and convincing evidence that it is in the child's best interest.
Michigan has adopted the four-pronged test set forth in D'Onofrio v D'Onofrio, 144 NJ Super 200, 206-207, 365 A2d 27 (1976), aff'd, 144 NJ Super 352, 365 A2d 716 (1976).
The factors in determining if a child can move to another state are:
How Does the Court Determine Parenting Time?
Like child custody, this is a matter often decided by agreement of the parties, subject to the approval of the court. Parenting time schedules must provide a realistic opportunity for the non-custodial parent to preserve and foster the parent-child relationship.
How Can I Modify an Order for Parenting Time?
If a request for modification of parenting time amounts to a change of the established custodial environment, the party seeking the change must show by clear and convincing evidence that it is in the best interests of the child. The party's attorney files a motion which explains to the court why the relevant law supports a modification of the current parenting time schedule, based upon the existing facts.
Who Decides Interstate Custody Disputes?
Michigan has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to determine which state should decide custody disputes where two different states (or countries) are involved. A foreign country is treated as a state of the United States when applying this law. Generally, the court with jurisdiction in the state where the child lives decides custody issues.
What About When One Parent Kidnaps the Child?
Parental kidnapping is a felony, where the noncustodial parent takes the child either in or outside of the state, for more than 24 hours. However, if the kidnapper can prove that the act was necessary to prevent harm to the child, it is a complete defense.
I hope this information about child custody was helpful. If you still have questions about child custody, change of domicile, or any other child custody related matter, please don't hesitate to contact me. I am an experienced Michigan divorce lawyer with many years of experience with child custody, family law, and divorce.