Child Custody and Parenting Time Attorney in Oakland County
Legal Guidance for Important Decisions
Currently it is considered the "norm" for parties to share joint
legal custody. Increasingly, parties are also agreeing to share joint
physical custody, which does affect (reduce) the amount of child support
a party is required to pay. However, courts cannot blindly accept the
parties' stipulation. The court must independently agree that the custody
arrangement is in the best interests of the child. If the parties cannot
agree on custody issues, they need a good attorney to skillfully argue
their position to the court.
Contact us online or call
(248) 773-3317 to schedule a free consultation and gain representation for your case.
What Are the Different Types of Physical Custody Arrangements?
In October of 2008, the Michigan Child Support Guidelines changed to reflect
the actual number of overnights in determining child support. Before this,
there was a big difference in the amount of child support between the
three levels of custody: Primary custody, shared responsibility (a.k.a.
“2/3 - 1/3 custody”), and joint or "50-50" custody.
The change is a big improvement, because it encourages parents to focus
on the best parenting time arrangement for everyone instead of trying
to fit within one of the three scenarios in order to get more, or pay
less, child support.
child support is still based solely on the number of overnights a child
has with each parent. This is odd, considering that all of a child's eating, drinking, and active
time occurs while they are awake, and that is what costs the money! Thus,
even under the "new and improved" Support Guidelines, one parent
could have the kids every day of the year until 9 p.m. and still have
to pay child support to the other parent based on overnights. Clearly
,the formula is still imperfect.
At Lady4Justice PLLC, we encourage parents to decide on custody based on
what works best for the entire family. We remind our clients that they
are free to deviate from the Support Guidelines if it is in the best interest
of the child (for example, in the above scenario where one parent has
the kids until 9 p.m. every night while the other has them overnight and
sees them off to school, the parents can agree to reduce the amount the
first parent is "required" to pay, in consideration of the fact
that they are providing for the children's needs during most of their
waking hours). Cooperative co-parenting is always the best for all concerned,
and it pays enormous dividends.
Courts do their best to determine the optimum custody arrangement. Ideally,
however, you and your spouse are in the best position to know what is
in your children's best interest. Working it out between the two of you
with the help of your attorneys is the best way.
On What Basis Do Courts Decide Who Gets Custody?
Courts are required to look at specific factors involving the best interest
of the child, which has been crystallized by statute into 12 factors.
The 12 "best interest" factors are:
- The love, affection, and other emotional ties existing between the parents
and the child
- The ability and willingness of the parties involved to give the child guidance
and continue the education and raising of the child in their religion
or creed, if any
- The ability and willingness of the parties involved to give the child food,
clothing, medical, and other remedial care
- The length of time a child has lived in a stable environment and the desirability
of maintaining continuity
- The permanence, as a family unit, of the existing or proposed custodial home
- 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 considers the child
to be of suitable age to express a preference
- The willingness and ability of each parent to foster a close and continuing
relationship with the other parent
- Domestic violence, regardless of whether it was directed against or witnessed
by the child
- Any other factor the court considers relevant in a particular case
At Lady4Justice PLLC, we begin our consideration of the 12 "best interest"
factors the moment we are retained, to help you develop your case to present
to the court.
Modification of Custody Orders
Can I modify a child custody order? If so, how? Yes. An existing custody order can be modified by filing a motion for
change of custody. The first question courts look at is whether there
is an established custodial environment. Courts look at duration, parental
care, love, discipline, guidance, and attention to the child's needs.
A party challenging an established custodial environment has a heavy burden
of proof: First, they must show that there has been a change of circumstances.
Second, they must demonstrate, by clear and convincing evidence, that
a change of custody is in the best interests of the child. The purpose
of this high burden of proof is to prevent unwarranted and disruptive
changes in a child's life.
Temporary custody orders do not, of themselves, establish a custodial environment,
regardless of how long they have been in place. If a court finds there
is an established custodial environment, it makes no difference whether
that environment was established by court order (temporary or permanent),
without court order, or even in violation of court order. The best interests
of the child, their stability, and well-being are paramount.
The court can change custody if it finds "proper cause shown"
or that it is in the best interests of the child. Only one published case (Vodvarka v Grasmeyer, 259 Mich App 499 ) details what these terms mean. A motion for change of custody is a complex
proceeding which requires the assistance of a skillful attorney.
Third Party Change of Custody
Can third parties (such as other family members) challenge custody? There is a presumption in favor of parents in all custody disputes. If
a third party, such as a relative seeks custody of a child against their
parents, the third party must show by clear and convincing evidence that
it is in the child's best interest. Third parties have standing (i.e.,
the right to seek custody) in limited situations, such as if the custodial
parents are dead or missing. Third parties may also seek custody under
the guardianship statute.
Call us at
(248) 773-3317 for more information on this growing area of law.
What About Grandparent Visitation?
DeRose v DeRose, 469
Mich 320 (2003), the Michigan Supreme Court declared the Grandparent Visitation Statute
(MCL 722.27b) unconstitutional because it did not require the court to
defer to a fit parent's decision regarding denial of grandparent visitation.
But on January 3, 2005, the Grandparent Visitation Bill was unanimously
passed by the House and Senate, and signed into law by Governor Granholm.
It incorporates the DeRose holding by requiring the court to defer to
a fit parent's decision whether to allow grandparent visitation. It is
now presumed that a fit parent's decision to deny grandparent visitation
does not create a substantial risk of harm to the child's mental, physical,
or emotional health. A grandparent must overcome that presumption and
prove by a preponderance of the evidence that the parent's decision to
deny the visitation creates a "substantial risk of harm to the child's
mental, physical, or emotional health."
Can I Move with My Child to Another State?
Such moves (called a change of domicile) are achieved by filing a motion
for change of domicile, and must be approved by the court. If such a move
amounts to a change in the established custodial environment, then it
is necessary to prove to the court by clear and convincing evidence that
it is in the child's best interest.
Michigan has adopted the four-pronged test set forth in D'Onofrio v D'Onofrio,
144 NJ Super 200, 206-207, 365 A2d 27 (1976), aff'd, 144 NJ Super 352,
365 A2d 716 (1976).
The factors in determining if a child can move to another state are:
- Does the move have the capacity to improve the quality of life for both
parent and child?
- Is the move motivated by the custodial parent's desire to defeat or frustrate
visitation by the noncustodial parent?
- Is the noncustodial parent resisting the move in order to gain a financial
advantage respective to a continuing support obligation?
- Is the court satisfied that there will be a realistic opportunity for visitation
with the noncustodial parent adequate to preserve and foster that relationship?
Talk to an attorney regarding the details of moving a child to another
state or changing domicile. If you are considering moving to Michigan,
contact us for more information about your moving and child custody arrangements.
How does the court determine parenting time? Like child custody, this is a matter often decided by agreement of the
parties, subject to the approval of the court. Parenting time schedules
must provide a realistic opportunity for the non-custodial parent to preserve
and foster the parent-child relationship.
How can I modify an order for parenting time? If a request for modification of parenting time amounts to a change of
the established custodial environment, the party seeking the change must
show by clear and convincing evidence that it is in the best interests
of the child. The party's attorney files a motion which explains to the
court why the relevant law supports a modification of the current parenting
time schedule, based upon the existing facts.
Who Decides Interstate Custody Disputes?
Michigan has adopted the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA) to determine which state should decide custody disputes where
two different states (or countries) are involved. A foreign country is
treated as a state of the United States when applying this law. Generally,
the court with jurisdiction in the state where the child lives decides
What About When One Parent Kidnaps the Child?
Parental kidnapping is a felony, where the noncustodial parent takes the
child either in or outside of the state for more than 24 hours. However,
if the kidnapper can prove that the act was necessary to prevent harm
to the child, it is a complete defense.
Contact a Michigan Divorce Lawyer
I hope this information about child custody was helpful. If you still have
questions about child custody, change of domicile, or any other child
custody related matter, please don't hesitate to contact me. I am an experienced
lawyer with many years of experience with child custody, family law, and divorce.
To schedule a free consultation, call
(248) 773-3317 or
send us a message.