Child custody involves two main concepts. The first is the decision making authority, often referred to as “legal” custody. The decision making authority may be sole, where only one parent has the authority, or joint, where both parents must make decisions together. In Michigan the legal custody refers to decisions involving the child’s wellbeing, which are often decisions related to things like education, religion, and medical treatments. Whereas day to day decisions are often left to the parent the child is in the physical presence of.
The second type of custody is often referred to as “physical” custody, but the trend in the law is not to use the term “physical custody” but explain a parenting time schedule. If parenting time is roughly equal, rather than “joint physical custody” courts are beginning to refer to the arrangement as “shared parenting time” to be more clear in their orders.
Parenting time, formerly called “visitation,” refers to the time each parent has with the child (usually counted in overnight time).
A court will determine child custody in the child’s best interests, which is a child focused (and not parent focused) approach. This is done by considering and weighing the facts of a particular family in light of the statutory factors in Michigan, which are:
Once the court issues an initial custody and parenting time order either in a paternity case, or a divorce case, custody and parenting may be modified if there is a change in circumstances or for good cause, which generally requires the reason relates to at least one of the best interest factors under the law.
If parents cannot determine a custody and parenting time arrangement without court involvement, or by agreement, it is considered a “contested” custody dispute. This means that the court will need to make a decision. When courts are required to determine custody and parenting time, the court will consider the statutory framework, including the 14 best interest factors. To aid the court in this decision the parties, or the court, may require experts to provide an opinion on the matter. The court may appoint such an expert, such as a Guardian Ad Litem (an attorney appointed to represent the child’s interests) or a behavioral science expert (usually a PhD). The Court may, on its own, appoint such an expert to investigate and opine on the matter of child custody and parenting time, or may appoint such an expert upon the motion of one party, or joint agreement of both parties. While a custody evaluation will not be the end all be all of a custodial decision, as the court must still make an independent analysis and finding, the court can consider the testimony and opinion of experts to aid in making the decision.
Custody Evaluations are often a long and expensive process, but in some cases, very necessary. Custody Evaluations include psychological testing of the parents, and sometimes the children if they are of a sufficient age, an extensive background history of the family, including the parents’ own childhood experiences, observations of the parents with the children, interviews with the children (if of a sufficient age), collecting collateral resources such as interviews with extended family, teachers, friends, etc. and a home study (review of the home environment). Custody Evaluators will be tasked with investigating the concerns of the parents as it relates to their children and the other parent, and analyzing all of the data to render an opinion about what is in the child’s best interests.
Whether you need to establish custody and parenting time orders for the first time, modify orders that are no longer in the child’s best interests, or defend the current status quo against the other parent’s motion to modify custody, a court will consider the child’s best interests given the present circumstances, which makes every child custody and parenting time dispute unique and fact sensitive. At Schmeltzer & Bostic, we will work with you to gather the facts, discuss your legal goals, and help you to obtain the best results possible for your family in child custody and parenting time matters.