When we discuss custody disputes, we are discussing the child’s proper residence. It is where a child spends most of their time. Should a child live with the mother or the father? How can a child have their say in a custody dispute? How does a child get a voice in a custody case?
Do we truly ask the children in Michigan?
Yes, we do.
Click here to watch the video How Does a Child Get a Voice in a Custody Case in Michigan?
There are a dozen highly detailed factors defining what is in a child’s best interest. Depending on the judge, each of those factors is given a different weight. Although the court does consider the child’s input, it does not always make a difference in the decision about custody. What is in their best interest should not be left up to the child; rather, the court should make that decision.
Possibly the most important relationship in a society is the one between parents, children, and the state. This triangle’s ingrained social attitudes and legal conventions shape how we raise our children and provide the cornerstone of social continuity within a nation. Usually, this relationship is not examined. The state only steps in to carry out and make plain society’s values when the family breaks down due to the death of one or more parents, divorce, parental incompetence, or abuse. The question of child custody and control involves the state temporarily, and occasionally permanently.
How Did This Child Custody Mandate Start?
You might be wondering why taking care of children has become so complex amidst the interpretation and technical execution of statutes on child custody. How did we get here in terms of the complexity of the laws?
English common law was in effect when colonists first started to settle in the United States. Following a divorce, the father was given custody of his children at this time. Fathers left their farms in search of work as the Industrial Revolution was taking place. Mothers were left behind to care for the children. Divorce custody determinations were influenced by this change in the family structure.
Courts frequently granted non-custodial parents visiting privileges with their children in the 19th century. These “access” rights were flexible and the custodial parent established a timetable, allowing the non-custodial parent to visit their child “at all reasonable times.” If family law courts thought the children were in danger from the non-custodial parent, visiting privileges might be withheld.
The Tender Years Doctrine was later adopted by numerous states in the United States. The British Parliament created this rule in 1873 with the underlying premise that, in the event of a divorce, children under the age of 16 should ideally remain in the custody of their mother. Nearly a century went by with this law in place.
There was a divorce boom in the 1960s lasting for a few decades. As father’s rights organizations proliferated and women’s participation in the campaign for gender equality increased, a discussion about parental duties started to take shape. It is in a way a foretelling of what was about to come into the family-related jurisprudence.
The Tender Years Doctrine was out of date by this point, and a broad yet comprehensive standard quickly took its place. Many custody fights eventually became hotly disputed and protracted, with judges using their discretion to make rulings on what they deemed to be in the “best interest of the child.”
The emergence of joint custody agreements is one benefit of the best interest criterion. The study of child development started to pay attention to the changing gender roles in families in the 1970s, as well as the impact fathers made. California was the first state to enact a joint custody law in 1979. By 1991, over 40 states had laws in place providing shared custody as an option or preference for divorcing couples after other states had done the same.
The contemporary legal custody system in place today is the result of these changes. This now defined how courts determine child custody.
What Goes into the Determination of Child Custody?
In the determination of custody, the court ponders upon two aspects of a child’s life: the established custodial environment and the child’s best interests.
The Established Custodial Environment (ECE)
The child must have a relationship with a parent or another adult that has persisted for an “appreciable” amount of time in order to establish a custodial environment. In this relationship, the child looks to the caretaker for both discipline and instruction as well as support and direction. Along with attending to the child’s necessities, the custodian is required to offer “parental comfort.”
The law states that child custody arrangements cannot be changed. As a result, the judge will always verify whether the child is housed with one or both parents in an established custodial environment or what is referred to as ECE. If that were the case, more details would be needed before a judge could change the prevailing circumstances.
Even though a parent has custody, it doesn’t follow the child will solely turn to them for support, guidance, and the implementation of discipline. It should be noted both parents may have established custodial relationships with the child because they have provided guidance, discipline, basic needs, and parental comfort.
If the judge determines that an ECE exists, the party seeking to alter it must provide convincing proof that the change is in the child’s best interests.
The side that can prove, by a preponderance of the evidence, the proposed custody arrangement will be in the child’s best interests will prevail if the judge decides there is no ECE.
The Best Interests of the Child
It’s easy for parents to put their own needs and wishes ahead of what would be best for their children when they are fighting for custody. Using mediation or a negotiated settlement, the majority of Michigan families resolve their divorce or child custody dispute out of court. One parent may be designated as the primary caretaker, or they may decide that shared custody is best for the children.
The court may be required to decide what is best for the kid or children in a scenario when couples are unable to reach an agreement on custody. The “best interest factors” of the Child Custody Act, a collection of 12 factors assuring custody judgments focused on the child’s interests, are used as a guide by courts and family law practitioners.
During the custody and parenting time hearing, both parents will have the opportunity to share their thoughts on the matters pertaining to the child’s best interests. The court might not have to take all relevant facts into account equally when deciding what is in the best interests of the child under the law. The judge determines the weight that should be given to each consideration.
For more reading on ECE and the best interest factors please check out our article, “What Do Judges Look For in Custody Cases in Michigan?” which talks about the considerations judges make while deciding custody issues.
One of the most trying experiences a parent can have is a custody dispute, but the truth is that children caught in the middle of the conflict may find it just as challenging. On the one hand, it’s wonderful for children to know that both of their parents love them and want them, but dealing with a difficult custody battle on top of having to cope with the sorrow, loss, and frustration involved with parents getting divorced could be too much for children to handle.
The idea of having to pick one parent over the other is even more daunting for most children. Of course, there are situations where the child is clearly in favor of one parent over the other because that parent is more suited to the child’s needs. The question is: Do children even have a say in all of this?
How Does a Court Give Children Their Voice in a Custody Case?
In custody disputes, courts may take the child’s reasonable preferences into account, but only if they determine that the child is old enough to take part. What does this mean specifically for the state of Michigan? To begin with, any child who is 17 years old or older has the option to live with whichever parent they desire.
For children under the age of 17, it is considerably less easy. In general, a judge will take the time to consult with children between the ages of 9 and 17 to learn what they want in terms of living situations and child custody. But it’s unclear how much this preference will influence the judge’s choice.
If the child is old enough to voice a preference, the judge must take into account all 12 best interest factors listed in MCL 722.23, including the “reasonable preference of the child.” Consider the fact that “reasonable preference” is only one of twelve considerations.
If a judge determines that a child under the age of six is mature enough to express an opinion, courts may interview that child. Nevertheless, the judge will need to decide if the child is behaving in their own best interests or merely favoring, for instance, the more tolerant parent.
Unless the judge determines that the child has the capacity to make and express a reasonable preference on custody and visitation, the judge in Michigan will not even take the child’s perspective into account.
Does a Child’s Voice Really Matter in a Custody Case?
A child older than six is normally assumed to be able to express a reasonable custody preference by the judge. But it does not necessarily mean every child in that age group can. It also does not imply that judges will never take younger children’s opinions into account.
Because some children are mature above their years, specific conditions may impair older children’s ability to develop a fair judgment. For instance, a Michigan court determined that a 12-year-old boy was unable to establish a reasonable custody preference because of his “fragile emotional state” and his mother’s extensive efforts to sway his decision.
A judge must determine whether a child has made a reasonable preference about custody and visitation after establishing the child is able to have an opinion about those issues. This doesn’t imply the child must give specific justification for their expressed preference or engage in a critical study of it; it merely means it isn’t based on irrational or irrelevant considerations.
For instance, if a child merely wishes to live with a parent who is less strict or has a nicer home, a judge isn’t likely to consider that preference. Judges, on the other hand, are likely to take into account the wishes of a child who wants to live with the parent who prepares meals, assists with homework, and makes it to doctor’s appointments.
Even if a judge finds that a child has voiced a valid custody choice, this does not mean that the judge will accept the child’s wishes. The judge will only take into account the child’s preference in addition to all other relevant factors.
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Goldman & Associates Law Firm is here to with information about Child Custody and Divorce in the State of Michigan.