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Custody and Parenting Time

Contents

    Legal Custody and Physical Custody

    People often think about custody in terms of “legal” custody and “physical” custody. Legal custody means having the right to make important decisions about your children, such as where they go to school, what religion they are, and major medical decisions. Physical custody refers to the children's living arrangements.

    Custody can be “sole” or “joint”. “Sole” custody means only one parent has custody. “Joint” custody means the parents share custody. If parents share legal custody they must make important decisions about their kids together. If parents share physical custody the children take turns living with each parent.

    Parenting Time (Visitation)

    A parenting time schedule tells when the children spend time with each parent. If a court order says “reasonable” parenting time, parents must work out the specific dates, times, and other conditions together. The children’s ages, how far apart the parents live and the parents' schedules can affect a parenting time schedule.

    If a court orders specific parenting time, all the details are included in the court order. It may work best to have a specific parenting time schedule if you and the other parent can’t easily talk to one another or agree on a parenting time schedule.

    Many family courts have a “standard” parenting time schedule. A standard parenting time schedule normally gives parents alternating weeks and/or weekends. Holidays are split between the parents, and they switch each year. For example, if this year the mom has the children for Christmas Eve and the dad has the children for Christmas Day, next year the dad will have Christmas Eve and the mom will have Christmas Day.

    If one parent is irresponsible or has harmed or threatened to harm the children, the court may order parenting time to be supervised by a third party. The supervisor could be a grandparent, other relative, friend, supervised visitation center, or other agency.

    How Custody and Parenting Time Are Decided

    Initial Custody Order

    Established Custodial Environment

    The law says generally that custody arrangements for children should remain stable. Because of that, the court will always ask whether the child has an "established custodial environment" with one or both parents. If so, it will take more evidence for a court to change the current arrangement.

    When answering this question, the judge looks at what the child's life is actually like, not just what the order says. Does the child look to one (or both) of the parents for love and affection, food, housing, etc.? Is the child old enough to have been in the current arrangement for a significant amount of time?

    The Best Interests Factors

    You and your child’s other parent may be able to work out custody and parenting time for your children. If you aren’t able to agree, the court will decide custody and parenting time based on “the best interests of the child.” This legal test requires the court to consider these 12 factors:

    Factor (a): The love, affection, and other emotional ties existing between the parties involved and the child;

    Factor (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;

    Factor (c): The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs;

    Factor (d): The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;

    Factor (e): The permanence, as a family unit, of the existing or proposed custodial home or homes;

    Factor (f): The moral fitness of the parties involved;

    Factor (g): The mental and physical health of the parties involved;

    Factor (h): The home, school, and community record of the child;

    Factor (i): The reasonable preference of the child, if the court considers the child to be old enough to express a preference;

    Factor (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 (assuming a relationship with each parent is good for the child);

    Factor (k): Domestic violence, regardless of whether the violence was directed against or witnessed by the child;

    Factor (l): Any other factor considered by the court to be relevant to a particular child custody dispute.

    Changing a Custody Order

    What is a Final Custody Order?

    A final custody order is a court’s decision after an evidentiary hearing, or an order based on the parents' agreement if the court has adopted it. It does not include a temporary order used while a divorce or custody case is pending.

    Proper Cause or Change of Circumstances

    When changing an order, a court makes custody decisions differently than when making the first custody order. The court won’t change the custody arrangements unless the party asking for the change shows there is either "proper cause" or a "change of circumstances" to consider the change. This is sometimes called a threshold.

    Proper cause or a change of circumstances is more significant than normal life changes. It must be something that has a big impact on the child. Only after proper cause or a change of circumstances is shown can the court reconsider what custody arrangements are in the best interests of the child.

    Evidence Needed to Change Custody

    If the court finds there is proper cause or a change or circumstances to reconsider the best interests factors, it must still look at whether an established custodial environment exists.

    If the court finds an established custodial environment, a higher standard of proof is needed to change that environment. The person wanting the change will have to meet that higher standard of proof. To change custody, the evidence must be clear and convincing that the change is in the best interests of the child.

    Parenting Time

    To decide parenting time, the court uses the 12 best interests of the child factors. The court also uses these other factors to decide how often each parent has parenting time, how long visits are, and whether the parenting time is supervised:

    Factor (a): Any special needs of the child;

    Factor (b): Whether the child is a nursing;

    Factor (c): Whether abuse or neglect of a child during parenting time is likely;

    Factor (d): Whether abuse or neglect of a parent during parenting time is likely;

    Factor (e): The inconvenience and impact on the child of traveling for parenting time;

    Factor (f): Whether a parent is reasonably likely to exercise their parenting time;

    Factor (g): Whether a parent has frequently failed to exercise reasonable parenting time;

    Factor (h): The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent;

    Factor (i): Any other relevant factors.

    Learn More

    To learn more about divorce with minor children, see the article Introduction to Divorce with Minor Children and the I need A Divorce and I Have Children toolkit. Or, you can complete our Automated Online Divorce Forms if you want to file a divorce case.

    To learn more about custody cases, see the article Overview of a Michigan Custody Case. To learn more about the “best interests factors” see the article The "Best Interests of the Child" Factors.