| Whenever
the unhappiness of divorce is visited upon a family where
there are minor children, questions arise about the custody
of the children and with which parent the children should
live. It is obvious that the children cannot be divided in
half either physically or numerically, and arrangements need
to be worked out with regard to where the children will live
and the time to be spent with the parent with whom the children
do not live.
Before
the Family Court (which is the court that has jurisdiction
over divorces and child custody matters in Michigan) can make
any decision with regard to the custody of minor children,
it must determine whether there exists a "custodial environment"
with one parent or the other. The law provides that the court
may not amend or modify a previous judgment or issue a new
order so as to change an established custodial environment
of a child unless there is presented clear and convincing
evidence that it is in the best interest of the child. A "custodial
environment" is established if, over an appreciable time,
the child naturally looks to the custodian in that environment
for guidance, discipline, the necessities of life, and parental
comfort.
If
the court is satisfied that there exists in one parent or
another a "custodial environment" then the court
may not change custody unless it is satisfied, by clear and
convincing evidence, that it is in the best interest of the
child or children. If, on the other hand, the court is satisfied
that there exists no custodial environment with one parent
or the other, the court will decide by a preponderance of
the evidence which parent should have custody based upon the
best interests of the children.
In
deciding what is in the "best interests of the children,"
the court is obligated to consider, evaluate, and determine
certain factors. Those factors are:
The
love, affection, and other emotional ties existing between
the parties involved and the child.
The
capacity and disposition of the parties involved to give the
child love, affection, guidance, and continuation of the educating
and raising of the child in its religion or creed, if any.
The
capacity and disposition of the parties involved to provide
the child with food, clothing, medical care and other remedial
care recognized and permitted under the laws of this State
in place of medical care, and other material needs.
The
length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
The
permanence, as a family unit, of the existing or proposed
custodial home or homes.
The
moral fitness of the parties involved.
The
mental and physical health of the parties involved.
The
home, school, and community record of the child.
The
reasonable preference of the child, if the court deems the
child to be of sufficient age to express preference.
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.
Domestic
violence, regardless of whether the violence was directed
against or witnessed by the child.
Any
other factor considered by the court to be relevant to the
particular child custody dispute.
As
you can see, many factors, including considerations associated
with the children, the family unit, and each of the competing
parents are considered by the court.
At
the time the court makes determinations as to who shall have
custody of the minor children, consideration must be given
as to what is in the best interest of the children in determining
and setting forth a parenting time schedule for the parent
who does not have principal custody of the children.
Weighing
and evaluating the interests of the children and the parents
as to questions of custody and visitation is a complex and
difficult task. The likelihood of the court pleasing either
or both of the parties is slim. It is for this reason that
the parties are in a much better position to make these decisions
for themselves through an agreed upon settlement, as opposed
to allowing the court to undertake this task.
(1)
TYPES OF CUSTODY
A.
Joint Custody. Under present Michigan law, in any
custody dispute between parents, the parents are to be advised
of the existence of a joint custody arrangement. At the request
of either parent, the Family Court is obligated to consider
an award of joint custody and state reasons for granting or
denying such a request. In determining whether joint custody
is in the best interest of the children, the court is required
to consider all the previously mentioned factors relating
to the "best interests" of the child. In addition,
the court is required to consider whether the parents will
be able to cooperate and generally agree concerning important
decisions affecting the welfare of the child. The court is
obligated to award joint custody unless the court determines
by clear and convincing evidence that joint custody is not
in the best interests of the children.
In
establishing a joint custody arrangement, the court must set
forth when the child shall reside with each parent or provide
that the physical custody be shared by the parents in a manner
to insure the child’s continuing contact with both parents.
The term "joint custody" as used by the law means
that either the children shall reside alternately for specific
periods with each of the parents and/or that the parents shall
share decision-making authority as to the important decisions
affecting the welfare of the minor children.
"True
joint legal and physical custody," is the children residing
one week with one parent and one week with the other parent,
simply will not work in a majority of cases. This sort of
joint custody requires the parties to get along and communicate
in a fashion which is consistent with a positive marital relationship.
If the parties are having difficulty getting along such that
they should get divorced, it would be an unusual circumstance
for them to get along well enough to be the joint custodial
parents of the minor children. This "true joint custody"
is, however, an objective that parties clearly can work towards
and attempt to facilitate under the right circumstances.
B.
Joint Legal Custody. A variation of the "joint
legal and physical custody" is an arrangement which is
known as joint legal custody with primary physical custody
being with one parent or the other. This arrangement is not
dissimilar to the classic custody/visitation arrangement which
had been in existence prior to the 1970s. An arrangement wherein
the parties have joint legal custody but primary physical
custody rests with one party or the other, involves the parties
continuing to work together and consult with each other as
it relates to major decisions affecting the minor children,
however, the children remain principally with one parent or
the other, and the "non-physical custodial parent"
enjoys what has classically been considered to be parenting
time.
C.
Custody/Visitation. A classic and more commonplace
circumstance of custody has been that one parent would have
custody of the minor children and the other parent would enjoy
parenting time. Under this circumstance, the children live
with one parent and enjoy parenting time with the other parent.
A schedule for parenting time along the following lines is
not uncommon:
Every
other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m.;
One
or more evenings or overnights during the "off-week";
Alternate
holidays;
Substantial
periods of time during the summer;
Either
alternate school, spring, and winter vacations or splitting
of these times;
Any
and all other times that the parties may mutually agree upon.
As
noted above, the family court has jurisdiction to modify provisions
associated with custody and visitation, and if either party
believes that a modification is necessary or appropriate,
they may ask the court to intervene. Once again, it should
be noted that if there is an "established custodial environment,"
it will be necessary for the party who is asking the court
to change the physical custody arrangement to prove, by clear
and convincing evidence, that a modification of the present
arrangement is in the best interests of the minor children.
(2)
FRIEND OF THE COURT
Under
law, each county has a "Friend of the Court." The
responsibility of the Friend of the Court is to assist the
court and the parties in matters associated with the minor
children. The Friend of the Court should be perceived as an
ally of the children, and helpful to the parties. They have
a most difficult job and should attempt to be fair to each
of the parties.
The
Friend of the Court will be called upon to make initial evaluations
and recommendations as to what the custodial arrangement should
be and will be called upon both before and after the divorce
to assist the court and the parties in this difficult decision-making
process.
The
judicial and extra judicial aspects of a child custody dispute
are very complex and require the attention of qualified legal
counsel for each of the parties.
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