Understanding Child Custody
There are two types of custody which must be determined in every divorce or custody case. There is legal custody and physical custody. Legal custody involves the decision making aspects of custody. A party with legal custody(whether sole or joint) is responsible for making and being consulted about issues pertaining to a child’s health, education and religion. Physical custody involves being responsible for the actual care of the child on a day-to-day basis. Sole or joint custody is possible for both of these types of custody. The basis for determining child custody is “the best interests of the child.”
To determine what is in the best interests of the child, a court must inquire into the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in its religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of the medical care, and other material needs.(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.Joint Custody
At the request of either parent, the court shall consider an award of joint custody, whether legal custody, physical custody, or both, and shall state why joint custody may or may not be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
(1) The “best interests” factors enumerated above.(2) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
If the parents agree on joint custody, the court will award joint custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child.
During the time the child resides with a parent, that parent decides all routine matters concerning the child.
Joint physical custody does not automatically mean equal or 50/50 custody. The actual “parenting time” awarded to each party is a separate issue to be determine by the court, if necessary. Either parent, at any time, may petition the court for a specific parenting time schedule.
Joint custody does not eliminate the responsibility for child support. Each parent is responsible for child support based on the needs of the child and the actual resources of each parent. Child support is calculated using a mathematic formula and guidelines adopted by the State of Michigan. The income of the parties, parenting time, cost of health insurance premiums for the child(ren) and child care costs are all considered. Deviation from the calculation, whether to increase or decrease the total support, can occur, if specific findings are made by the court and placed on the record. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
Child custody orders are modifiable, in the event there has been a change of circumstances that would warrant a change. In making decisions whether to modify a custody order, the court will consider the time the child has lived in a stable custodial environment and what is in the best interests of the child. A court must first determine if there is an “established custodial environment.” That determines the burden of proof: clear and convincing evidence that there is a compelling reason to change custody if there is an established custodial environment or the preponderance of the evidence if there is no established custodial environment.
It should be remembered that the child’s preference, although an important factor, is just one factor to be considered of the twelve factors listed above; and it is not in the child’s best interests to try and convince a child to have a preference by promises or threats or to discuss the divorce case with the child.