Custody in Michigan.

Decisions against where the child lives

MCL 722.26a(7) defines joint custody as an order specifying either that the child shall reside alternately for specific periods with each parent, or that the parents shall share decision-making authority as to the important decisions affecting the child's welfare, or both. During the time a child resides with a parent, MCL 722.26a(4) says that parent decides all routine matters.

What the judge must weigh

1. (a) The love, affection, and other emotional ties existing between the parties involved and the child.
2. (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.
3. (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.
4. (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
5. (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
6. (f) The moral fitness of the parties involved.
7. (g) The mental and physical health of the parties involved.
8. (h) The home, school, and community record of the child.
9. (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
10. (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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
11. (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
12. (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

What the child wants

Factor (i): 'The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.' There is no magic age in the statute. The judge decides whether your child is old enough, usually talks to the child privately rather than in the courtroom, and weighs the preference along with the other eleven factors. It is not a vote.

Where there has been violence or abuse

Domestic violence is factor (k): 'Domestic violence, regardless of whether the violence was directed against or witnessed by the child.' Factor (j) was amended to add that a court may not hold against a parent, for purposes of that factor, any reasonable action that parent took to protect a child or themselves from sexual assault or domestic violence by the other parent – so seeking a personal protection order or leaving is not supposed to be counted against you as failing to encourage the relationship. In relocation cases, domestic violence is factor (e) of MCL 722.31(4), and MCL 722.31(6) allows a parent who needs to seek a safe location from the threat of domestic violence to move there with the child until the court rules. MCL 722.25(2) also bars an award of custody to a biological parent convicted of specified criminal sexual conduct where the child was conceived as a result. And the Friend of the Court alternative dispute resolution plan must, under MCL 552.513(1), include screening for domestic violence, protection orders, child abuse or neglect and other safety concerns, with a method to address them.

The parenting plan

We did not confirm a Michigan statute requiring a written parenting plan document in the way some states do. What Michigan does require is that every order determining or modifying custody or parenting time include a provision stating the parents' agreement as to how a change in either of the child's legal residences will be handled – MCL 722.31(5) – and if the parents do not agree on such a provision the court must insert the 100-mile-rule language quoted in that subsection.

Mediation

Effectively, yes, in Friend of the Court cases. MCL 552.513(1) requires the Friend of the Court office to provide, directly or by contract, alternative dispute resolution to help parents voluntarily settle a custody or parenting time dispute, under a plan approved by the chief judge and the State Court Administrative Office. A party may be required by court order to meet with the person conducting that alternative dispute resolution. The plan must include a screening process for domestic violence, protection orders, child abuse or neglect and other safety concerns, and a method for addressing them, and it must include an option for domestic relations mediation. If you reach agreement, a consent order is prepared and entered by the court.

If the court appoints someone to look into it

Yes. Under MCL 722.27(1)(d) the court may use a guardian ad litem or community resources in the behavioral sciences and other professions to investigate and study a custody dispute, and consider their recommendations. In practice this is usually the county Friend of the Court. Kent County's Friend of the Court, for example, publishes that investigations are ordered by the court, that a fee of up to $300 may be assessed to one or both parties, that the FOC gathers information from both parents and other sources (police reports, Children's Protective Services reports, criminal records, health records), interviews the parents, and then files a written report and recommendation with a proposed order – and that you have 21 days from the date the report is sent to file a written objection with the court, not with the Friend of the Court. If you do not object within 21 days, the proposed order can be signed by the judge and become your new order. Do not let that clock run out.

Changing the order

This is the part of Michigan law that decides most cases and that consumer articles leave out, so read it slowly. Under MCL 722.27(1)(c), the court may modify or amend its previous custody judgments or orders 'for proper cause shown or because of change of circumstances' – but then comes the sentence that matters: 'The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.' The statute defines that environment: 'The custodial environment of a child 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. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.' In plain terms: if the change you are asking for would move the child away from the home and routine the child has come to rely on, you are not arguing about which arrangement is a bit better – you have to prove your case by clear and convincing evidence, a much heavier burden than the usual preponderance. If an established custodial environment exists with both parents, that heavier burden applies to a change from either. The same subsection adds that if a motion for change of custody is filed while a parent is on active duty, the court shall not consider that parent's absence due to active duty in the best-interest determination.

If you were never married

MCL 722.1006: after a completed acknowledgment of parentage is filed with the state registrar, 'the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court.' The statute is explicit that this grant of initial custody to the mother 'does not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.' So an unmarried father who has signed an acknowledgment still has to go to court to get a custody or parenting time order, but starting there does not put him behind.