How will the court decide who will have physical custody? There may be a sense in Michigan that parents who act out run the risk of losing custody. Ex-spouses might try to exploit these events as leverage in a custody dispute. In child custody cases, the court rarely bases its decision on singular acts or behaviors.
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The custody of the children is decided by the courts based on a set of twelve factors. The twelve best interest factors serve as a guide for the court as it examines the evidence put out by the two opposing parties who are vying for custody of their children.
The rights and obligations of both parents towards their child can be established by a court proceeding of a specific type, known as a custody case. Parenting time, child support, and custody are all included in this. The child’s residence and decision-making are determined by the person who has custody.
What is the Distinction Between Legal and Physical Custody?
There are legal standards for judges to follow in establishing what is in the best interests of the kid, which is a broad definition used in Michigan to determine custody. Often, if the court is on board, parents can come up with their own plan, and the judge will approve it.
On occasion, the court will have to establish the specifics of the custody arrangement in a difficult child custody case. Both physical and legal custody are recognized by Michigan courts. A judge may appoint single or shared custody for either kind of custody.
Let’s point out the distinction between legal and physical custody because it will give context to the significance of getting physical custody.
Legal Custody
The decision-making for the child is referred to as legal custody. A parent who has legal custody is in charge of making choices for their child in relation to issues like school enrollment, medical care, extracurricular activity involvement, and even religious upbringing. Keep in mind the phrase “sole custody” is not clearly defined by law. According to the Michigan Custody Guidelines, a parent is said to have sole custody if they receive both primary physical and primary legal custody.
When parents share legal custody, they can collaborate to make decisions that have a big impact on the child’s welfare. The quantity of time the child spends with each parent has no bearing on joint custody. If a choice is contested, however, the court may decide to give one parent primary legal custody over the other. This might occur, for instance, if both parents are devout believers in their own religions but belong to different denominations.
Physical Custody
In Michigan, physical custody refers to the child’s residence. If the court determines it to be in the child’s best interests, a parent may be given primary custody. A number of factors, such as involvement in the local community and families, may also be taken into account. The other parent may be given “parenting time” even though one parent may have primary custody.
Both parents may share custody, but it can also be sole or joint. Parents who share custody are said to have joint custody. When parents share legal custody, they must collaborate to make crucial choices for the children. The children live with each parent occasionally if the parents have joint physical custody.
Joint custody would give both parents equal access to the child while maintaining a set schedule. For instance, one parent might be responsible for the child’s care during the academic year while the other is in charge during the summer. Alternating holidays, birthdays, and other significant anniversaries can also be arranged.
The court must take into account joint custody requests from either parent. Unless it is established that joint custody is not in the best interests of the child, the judge must grant joint custody if both parents consent to it. This decision’s justification must be stated in writing.
The length of time the child will spend living with each parent will often be specified in the court order if the judge grants shared physical custody. The court order may stipulate the parents share physical custody so their children can see both of them. When a child lives with one parent, that parent makes all routine and important decisions involving the child.
Even if there may be a joint custody arrangement, if joint legal custody is not granted, significant decisions may still fall under the jurisdiction of one parent. Physical and legal custody arrangements can be made jointly or individually.
What is an Established Custodial Environment? What is its Impact on the Determination of Physical Custody of the Child?
In order to establish a custodial environment, the child must have a relationship with a parent or another adult that has lasted for an “appreciable” amount of time. In this relationship, the child looks to the custodian for support and guidance as well as for discipline and instruction. The custodian must also meet the child’s needs and provide “parental comfort.”
The law generally states child custody arrangements should not change. As a result, the judge will always inquire as to whether the child has an Established Custodial Environment (ECE) with either one or both parents. If so, it would require more proof for a judge to alter the current situation.
When deciding whether there is an ECE, the judge takes into account the child’s life. Does the child, for instance, turn to one (or both) of the parents for love and adoration, as well as for food, shelter, and other necessities? Is the child old enough to have spent a substantial amount of time in the current situation?
Even if a parent may have custody, it does not mean the child only seeks the parent for parental comfort, advice, and the administration of discipline. It should be highlighted that since they have given the child direction, discipline, basic necessities, and parental comfort, both parents may have created custodial situations with the child.
If the judge rules there is an ECE, the party seeking to change it must demonstrate with clear and persuasive evidence the change is in the child’s best interests.
If the judge rules there is no ECE, the winning party will be the one who can demonstrate, through a preponderance of the evidence, the proposed custody arrangement will be in the child’s best interests.
How Does the Court Determine Which Parent Gets Custody?
Parents are frequently able to reach an understanding of the custody and visitation schedules for their court order. They can come to an understanding on their own or with the assistance of the Friend of the Court (FOC).
What is the Role of the Friend of the Court in Child Custody?
When a judge is seeking to determine custody, most parents will contact the Friend of the Court office first. The completion of a custody assessment is one of the duties of the Friend of the Court. When there is a dispute regarding child custody or parenting time or both, and domestic relations mediation is refused by either parent or is unsuccessful, or if the court orders it, the law requires the Friend of the Court to investigate all pertinent facts and make a written report and recommendation to the parents and the court regarding child custody. The law further provides that, upon a party’s request, a meeting with the party shall be included in the investigation.
Understandably, parents experience worry and anxiety during the evaluation interview. The idea of having their parenting abilities assessed typically makes parents feel extremely apprehensive. In many cases, parents worry that they might “lose their children” as a result of the evaluation, which may make them feel more anxious.
The evaluator will frequently go over all of the requirements of the Child Custody Act during the conference unless any of the reasons are not in dispute by the parents. How do you show the child that you care about them? is an example of a question that an assessor might ask. How does the other parent show the child that they are loved and cared for?
To address every component of the Child Custody Act, the evaluator frequently asks questions that are similar to one another. The assessor may also ask additional questions in an effort to gather more information. The custody assessor uses the criteria in the Child Custody Act to collect information, draw general conclusions, and make recommendations to the judge.
What is the Role of the Family Court Judge in Child Custody?
The Friend of the Court does not make custody decisions; judges do. Judges may only accept suggestions for orders from Friends of the Court and domestic relations referees. The law stipulates that the judge’s judgment in custody disputes must be based on what is in the child’s best interests. When courts conduct custody hearings, they consider all the evidence offered about the Child Custody Act’s criteria in order to establish what is in the child’s best interests.
If the parents do not agree and want the court to approve a stipulation or consent order, a hearing must be held before the judge may make a judgment about custody. Judges will typically approve a stipulation or consent order if they independently decide it is in the child’s best interests. Before a stipulation or consent order becomes a court order, judges must accept, approve, and sign it based on their own findings.
The custody evaluation report that was completed by the Friend of the Court may be read by the judge prior to the hearing. These papers are typically examined by judges to better understand the circumstances of the family. The judge may hear testimony from witnesses during the custody hearing, including teachers, family friends, counselors, etc. Other evidence from school, local records, counseling reports, etc., may also be examined by the judge.
The children are frequently addressed by judges during custody hearings. In their chambers or the judge’s office, many judges speak to teenagers. Sometimes the parents’ attorneys are present when judges decide to address children in their chambers, and other times they are not. The judge’s conversation with the child may also be seen by a Friend of the Court custody assessor.
Who will be present when judges interview children is up to the judges. The judge must document the interview with the children. Judges merely need to note that the child’s option was taken into account without disclosing the specifics to the parents or their attorneys. The Child Custody Act’s other considerations do not outweigh the child’s preference. Judges merely take this into account as one factor.
Parents have the right to appeal a judge’s rulings if they don’t agree with them. A formal appeal is a request made to a higher court to have a judge’s ruling overturned. Domestic relations appeals are heard by the Michigan Court of Appeals. Without taking the matter up with a higher court, parents may ask the judge to reconsider a previous custody ruling.
Only in cases where there has been a meaningful change in the circumstances and the change in custody is in the child’s best interests may judges modify custody after concluding a custodial environment has been established.
If there was no previously established custodial environment, it is not necessary for it to be persuasive and clear for the judge to change custody. It is crucial to understand that simply because a child resides with a parent, it does not imply that a formal custodial situation already exists.
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Goldman & Associates Law Firm is here to with information about Child Custody and Divorce in the State of Michigan.