Michigan Child Custody: Custodial Preference

In Michigan, a judge will consider a number of factors in a child custody hearing. One of those factors may include the preference of the child.

Michigan child custody can be determined by a judge in cases where the parents do not agree. There are multiple factors that are taken into account, some of which include:

The love, affection, and other emotional ties between the parents and the child.
Each parent’s ability to give the child love, affection, guidance, and continue the education and religion of the child
Each parent’s ability to provide the child with food, clothing, and medical care
The stability of each parent’s home
Each parent’s moral fitness
Each parent’s physical and mental health
The child’s home, school, and community history
Each parent’s willingness to encourage a relationship between the child and the other parent
Either parent’s history of domestic violence
The child’s preference, if the child is of sufficient age, and
Any other factor the court deems relevant. (Mich. Comp. Laws § 722.23)

When Will The Court Consider A Child’s Preference?

As you can see above, the child’s preference is taken into account, as long as the child is of a sufficient age. However, the ‘sufficient age’ question can also be based upon the maturity of the child as well. So the judge has much leeway in determining whether or not to consider a child’s preference in a Michigan custody hearing.

A common misunderstanding is that once a child hits a certain age, they can simply choose which parent has primary custody. The judge will determine how much weight to give the child’s opinion, or if it is even proper to consider it in the custody decision.

Often, when all other factors are equal between the two parents, a child’s preference could be used as a tiebreaker. If it is obvious to the judge that one of the parents having custody is in the best interests of the child, then the child’s preference will not be considered.

Another important factor is whether or not the child’s preference is reasonable. This is not to say that the child needs to have a deep and well-thought out position on the matter, but that the preference is not based on something superficial, such as “dad lets me have ice cream for breakfast” or “mom allows me to stay up late on school nights”. However, if the child prefers the parent that helps with homework, for example, then the judge may consider it.

Do Children Have to Testify In Michigan Custody Hearings?

Most parents do not want to put their child “on the stand”, and in almost all cases, the court agrees. The court has determined that it could be psychologically damaging to a child to testify in a custody hearing, so in the vast majority of cases, this does not happen.

Usually a judge will speak to a child in chambers in an informal manner in order to discover the child’s custodial preference. The judge is under no obligation to allow an attorney to be present during these conversations, but occasionally will allow for it. The court does NOT allow parents to be present for these conversations.

Another very common occurrence is that the judge will order the Friend of the Court to interview the parents and the children in custody cases. Most commonly, these interviews are conducted by a social worker or attorney. Each parent will be interviewed, along with the child, and in some cases, the child will be interviewed alone. This will help the FOC determine what is in the best interests of the child.

The investigator will send a written report with findings and recommendations. This report will be sent to the court, parents and the parents’ attorneys. Each party has 21 days to object in most cases. If no objections are raised, then the court will adopt the recommendations into a court order.