Michigan Divorce and Child Custody

Introduction
The Waiting Period
The "Best Interest Factors"
Modification of Custody
Interstate Custody Issues
Calculation of Child Support
Joint Custody
Moving After a Custody Order

Introduction

Divorce and child custody cases are often difficult and emotionally taxing for all parties involved. It is important to have an attorney who is sensitive to your needs, and who can formulate a plan to protect your rights and assets. Usually both parties suffer financially as a result of divorce.

There are two types of divorce lawyer you should watch out for. One will bring a meritless child custody action in an effort to coerce the other partner into giving up more property. The other will bring frequent motions, and will manufacture conflicts, for the sole purpose of justifying a larger bill. Please pick your divorce lawyer carefully.

The Waiting Period

After you file for a divorce involving minor children, there is a 180-day statutory waiting or "cooling off" period before the trial court may enter a judgment of divorce. While it is possible for a trial court to find circumstances which justify waiving this period, in most cases the full 180-day waiting period will be observed. Ordinarily, a trial court will enter "temporary orders" for custody, parenting time (visitation), and child support, while the divorce is pending.

The "Best Interest Factors"

When evaluating child custody, Michigan courts are required to evaluate the "best interest" factors, a series of considerations which are meant to help the court determine the most appropriate custodial environment for a child. Those factors include:

(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 to continue the education and raising of the child in his or her 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 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 considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(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.

Please note that, while a court will make specific findings under each "best interest" factor when rendering a custody decision, the court's findings are not tallied up like a baseball score. It may be that one party "wins" under most of the factors, but that custody is awarded to the other party on the basis of a factor the trial court considers to be more important under the circumstances. For example, a judge may be sufficiently concerned about a parent who appears to wish to alienate the child from the other parent, that custody will be awarded to the other parent under a strong "factor j" finding, despite the many good qualities of the first parent. Similarly, "factor b" and "factor c" findings may be given considerable weight by a court, if a parent appears unwilling or unable to provide appropriate guidance or support.

The issue of "morality" relates to the effect of the parent's moral choices on the children. It is not intended to include an evaluation of a parent's character outside of the context of the best interests of the children, and the ability of the parent to provide appropriate moral guidance to the children. A parent's involvement in a new romantic relationship following divorce or separation is not the type of "moral conduct" which would ordinarily concern a court.

Modification of Custody

Once a trial court has entered a custody order, the trial court is not supposed to revisit that order unless the party requesting modification can establish a "change of circumstances" sufficient to reopen the prior custody decision. The idea behind this rule is that minor children need stability in their lives, and thus that modification of custody is not appropriate if there has been no significant change in their existing custodial environment. A lawyer can help you evaluate if there have been sufficient changes to warrant an effort to change or modify custody.

Interstate Custody Issues

Interstate custody disputes typically arise when a parent who lives with the children in Michigan files for divorce in a Michigan court, or when a parent who was divorced in a different state seeks to modify that state's child custody judgment in a Michigan court. In the first circumstance, a Michigan court will be able to grant a divorce and issue a custody order, but may be restricted in its ability to divide marital assets or to award child support without the other parent's consent to its jurisdiction. In the second circumstance, there are some relatively complicated rules which are meant to protect the jurisdiction of the court which issued the original custody order, which may prevent a Michigan court from modifying that order. If there are interstate issues in your custody case, due to the complications that can result, it is a good idea to consult with a lawyer about their impact on your case.

Calculation of Child Support

Child support is ordinarily calculated in accord with the Michigan Child Support Formula. This calculation is formulaic, and except in high income cases does not leave much room for advocacy. Child support is ordinarily payable until a child reaches the age of eighteen, or until the age of 19-1/2 if the child is still a full-time high school student. Please note that the parties can agree to additional support provisions on a contractual basis, for example if they wish to provide for their children's college education as part of the divorce agreement, or if they have a disabled child whom they know will require support well past the age of majority.

If you are paying or receiving child support, and your financial circumstances change, you may ask the court to modify the amount of child support payable in your case. Please note that under normal circumstances a court will be unable to modify support "retroactively" - that is, any change will ordinarily take effect as of the date of your petition for a modification. It is thus important that you present any challenge to excessive or inadequate support as soon as the changed circumstances come to your attention.

Joint Custody

There are two types of "joint custody" in Michigan - "joint legal custody", under which parents share decision-making responsibility in relation to important life decisions affecting the child, and "joint physical custody", which usually involves a more equal parenting time arrangement and shared responsibility for the day-to-day care of the child. A Michigan court must consider joint custody if asked to do so by either parent. Most custody cases result in an award of joint legal custody. Joint physical custody works best when the parents have a strong relationship and ability to communicate in relation to their minor children, despite the circumstances of their divorce.

Moving After a Custody Order

Custodial parents who are subject to a Michigan custody order are expected to seek permission from the trial court before relocating the children to another state. Where the parents with either joint physical or joint legal custody live within 100 miles of each other at the time of the initial custody order, either parent must petition the court before they move beyond that 100 mile limit.

Aaron Larson

Attorney at Law