Often, you will hear that someone was granted custody of their children in a divorce. While Michigan is a no-fault divorce state, issues with child custody during the divorce process can be impacted by one’s behavior within a marriage, especially when it comes to minor children.

There are two different types of child custody: physical and legal. I want to explain the differences, and how a judge will make determinations on custody.

Legal custody of a minor child refers to the important decisions made about the child or children. For example, medical, educational, or even religious decisions fall under the legal custody parameters.

Physical custody is exactly what it sounds like: this determines who the children live with.

Both legal and physical custody can be sole, or joint, and there are many different arrangements that can be made. Take for instance, a divorcing couple where one parent is moving out of Michigan and to another state or country. It may make sense to the judge to award sole legal custody to one parent, in order to make decisions about medical issues simpler, but can still award joint physical custody.

What standards do judges use to make child custody decisions in Michigan divorces? The prevailing legal standard is what is in the child’s best interests. Like most things in law, this is not just an arbitrary phrase. There are 12 different factors that are taken into account when a judge is making custody decisions.

Factor 1: The love, affection, and other emotional ties existing between the parents and the children. The criteria used to make this determination can include, but are not limited to: to whom the child is more bonded, who the child goes to when having a problem, how each parent relates to the child, time spent with each parent throughout a day, how often meals are made by either parent, separation of the child’s needs from the needs of the parent, and how affectionate the child is toward the parent.

Factor 2: The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue educating and raising the child in the child’s religion or creed, if any: Who stays home (usually) if the child is ill? Which parent assists with homework and other needs? If the child is involved in extracurricular activities, which parent is more involved? Involvement with grandparents, uncles, cousins is also considered, as is discipline, and how each parent talks to the child. Also, if there is a familial religion, who participates in services with the child?

Factor 3: The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs: This will take into account who is purchasing food, toys, clothing and other necessities for the child. Also considered is the stability of the jobs held by the parents, earning capacity, flexibility in each parent’s job schedule, ability to provide health insurance, and childcare arrangements. Also, the judge will consider if child support could make things more equitable.

Factor 4: The length of time the child has lived in a stable, satisfactory environment, and the desirability of continuing it: This determination can include such issues as which parent is making a more stable and secure environment for the child. Also, has either parent moved recently, and how has that move affected the child?

Factor 5: The permanence, as a family unit, of the existing or proposed custodial home or homes: Will the child live with step or half siblings? Who is part of the domestic familial unit of each parent?

Factor 6: The moral fitness of the parties involved: Here is where marital conduct, although Michigan is a no-fault divorce state, can come into play. Has either parent had an extramarital affair that the child was aware of? Is there any level of abuse occurring to either the child, or between the parties that has affected the child? Also, is there a pattern of substance abuse by either party? Even driving records can play a part in this determination.

Factor 7: The mental and physical health of the parties involved: Does either party have physical health conditions or mental health conditions that can impact the child negatively?

Factor 8: The child’s home, school, and community record: How does each parent contribute to school attendance and performance? Also considered would be attendance at school conferences and activities. Who ensures homework is completed? Who supervises chores at home? Do both parents assist in helping the child with spending time with friends?

Factor 9: The reasonable preference of the child, if the judge considers the child to be old enough to express a preference: Does the child possess the maturity to express a preference for a specific arrangement? If so, is that preference reasonable? For example “Dad lets me stay up later” or “Mom gives me ice cream for breakfast” is not reasonable. This discussion is had in private, and no record is given to the court, or to attorneys or either parent.

Factor 10: The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A judge may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent: How will each parent cooperate and follow a court ruling regarding custody? Do the parents try to manipulate the child or speak ill of the other in front of the child? Will each parent encourage the child’s relationship with the other parent?

Factor 11: Domestic violence, regardless of whether the violence was directed against or witnessed by the child: Any domestic violence, whether physical, emotional, verbal, or sexual is taken into account, independent of the child’s awareness of such.

Factor 12: Any other factor the judge considers relevant: Occasionally, there are other factors that do not fall under the purview of the other 11 considerations. Michigan divorce law allow judicial discretion for these matters. Some things that may be considered here are: Does the child have special needs, and how does each parent attend to those? Have there been threats to kidnap the child, or has either parent missed a scheduled time with the child? Has either parent kept the child beyond the legal custody dates/times? Does either parent have a significant other that interacts with the child, and what are the particulars of that relationship? Could there be a separation of a child from a sibling? The geographical distance between the parents is also taken into account.

With so much on the line in a custody arrangement, you need an attorney that understands your needs, your child’s needs, and how best to help achieve those ends. Call my office today and schedule a free consultation. Do not go through this alone.