Michigan Child Custody Laws

Michigan encourages both parents to remain involved in their children's lives, even after a divorce. In some states, the court begins the custody process by presuming that joint custody is in the child's best interest. In Michigan, however, the law only requires the court to advise both parents of joint custody and requires the court to consider joint custody only if either or both parents request it. (Mich. Comp. Laws § 722.26a (1).)

This article explains how Michigan courts decide custody issues, including the factors a court will look at in awarding custody. For all of our articles on Michigan divorce topics, see our Michigan Divorce and Family Law page.

Can I Get Joint Custody of My Children?

Michigan has a joint custody law that presumes it is in the best interests of children to maintain a close relationship with both parents. (Mich. Comp. Laws § 722.27a (1).) If the parents agree on joint custody, the court must order it unless it would not be in the children's best interests. If either parent requests joint custody, the court must consider the factors listed below in deciding. (Mich. Comp Laws § 722.26a (1).)

If parents have joint legal custody, they share the right to make decisions concerning such things as their children's education, medical treatment, religious training, or enrichment activities. If parents have joint physical custody, they share the time they spend with their children. Joint physical custody doesn't necessarily mean that the children spend exactly half of their time with each parent.

The court can also award one parent physical custody of the child. In that situation, the court will create a parenting time (visitation) schedule for the other parent.

What Is Parenting Time?

Parenting time is the time a noncustodial parent spends with the children. Under Michigan law, children have a right to parenting time with the non-custodial parent unless the other parent demonstrates, by clear and convincing evidence, that visitation would endanger the child's physical, mental, or emotional health. (Mich. Comp. Laws § 722.27a (3).)

How Does the Court Create a Parenting Time Schedule?

In many cases, parents work together to determine the best visitation schedule for everyone involved. If the court grants one parent physical custody, that parent should work to accommodate the other parent's work and social schedule to ensure that the parent and children have the opportunity to continue building a quality relationship.

The court will adopt whatever parenting time schedule that both parents agree to, as long as it's in the children's best interest. (Mich. Comp. Laws § 722.27a (2).)

If you and the other parent can't agree on a schedule, the judge will create one for you. A typical arrangement is for the noncustodial parent to have the children on alternate weekends, alternate holidays, and some of the children's school vacations.

When the court creates a schedule, you should understand that it sets out the minimum amount of parenting time for the noncustodial parent. In other words, if you and the other parent agree to allow more weekend or vacation visitation, the court order doesn't restrict you from doing so.

What Does a Judge Consider When Deciding Parenting Time?

When creating a parenting time agreement, the judge considers all of the following factors:

• whether the child has special needs
• if the child is less than 6 months old, or if less than 1 year, whether the child is still nursing
• the reasonable likelihood of abuse or neglect during parenting time
• whether there is a chance the non-custodial parent will abuse the other parent during the parenting time exchanges
• the inconvenience to, and impact on, the child for traveling for parenting time
• whether the court believes the non-custodial parent will exercise parenting time according to the order
• whether the non-custodial parent has frequently failed to exercise parenting time
• the threatened or actual detention of a child with the intent to retain or conceal the child from the other parent during parenting time, and
• any other relevant factors.

You can find a sample parenting time schedule on the Livingston County website.

How Does the Judge Decide Custody in Michigan?

The key factor in every custody case is what's in the children's best interest. Judges in Michigan must apply the "best interest factors" when deciding how to allocate custody and parenting time. The Michigan Legal Help website is an excellent resource for any parent who would like more details on each of the best interest factors.

What Factors Will the Judge Consider?

The Michigan Child Custody Act lists the factors the court must consider in deciding where the children's best interests lie. They include:

• the love, affection and other emotional ties existing between each parent and the child
• each parent's ability and willingness to give the child love, affection, and guidance, and to continue the education and raising of the child in religion or creed (if any)
• the ability and willingness of each parent to provide the child with food, clothing, medical care, and other material needs
• how long the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
• the permanence of the family unit of the existing or proposed custodial home or homes
• each parent's moral fitness
• the parent's and the child's mental and physical health
• the child's home, school, and community record
• the child's reasonable preference
• each parent's willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent or the child and the parents
• domestic violence, regardless of whether the violence was directed against or witnessed by the child, and
• any other factor the court deems relevant to a particular child custody dispute. (Mich. Comp. Laws § 722.23.)

Can My Child Decide Where to Live?

In short, the answer is no. It's a common misconception that, in Michigan, children of a certain age can decide where they live. On the contrary, until the child turns 18 years old, the court will determine what's best for the child using the above-listed factors.

That said, the court can consider the child's opinion, but only if the judge determines that the child is old enough and mature enough to express an opinion. The court is more likely to consider an older child's opinion than that of a younger child.

Resources

Michigan Compiled Laws, Chapter 722 contains The Child Custody Act of 1970, which details the laws and regulations for custody and parenting time in Michigan. You can read the Act by visiting the Michigan Legislature website.

If you're going through a divorce or custody dispute and you have questions, you should speak with an experienced family law attorney in your area.