Helping You and Your Family get Through Divorce

Custody

Child custody is a term that refers to rights and responsibilities for each parent and child. Custody is not a term used to indicate ownership, but rather a determination of the time a child is going to be with each parent and each parent’s responsibility to make decisions on behalf of the child. Custody can be modified to accommodate significant changes in the lives of the children or the parents involved. The judge attempts to structure custody to promote a strong relationship between children and their parents. The only time this is not true is when the judge determines that custody with a particular parent would endanger the child’s physical, mental, or emotional health.

There are several custody arrangements that can be agreed upon by parents or ordered by the judge. However, in custody disputes parents must be advised of joint custody. At the request of a parent the judge must consider awarding joint custody and must state during a hearing the reasons for granting or denying the request. The judge must decide if joint custody is in the best interests of the child. The judge could award joint custody and equally divide the time the child spends with each parent. However, the judge could also award joint custody and not equally divide the time the child spends with each parent.

For example, the judge could award joint custody, with one parent having physical custody during the school year and the other parent having physical custody during the summer vacation period.

Judges can order different custody arrangements. Parents can agree to a custody arrangement and judges will usually sign the court order for the arrangements as long as they believe the agreement is in the best interests of the child. The following are descriptions of custody arrangements.

SOLE CUSTODY: There is no legal definition for sole custody. For the purpose of the Michigan Custody Guidelines, sole custody occurs when primary physical custody and legal custody are given to one parent. Physical custody is when a parent provides most of the day to day care for the child. Legal custody is when a parent has the responsibility of making all major decisions regarding the child’s upbringing (such as medical treatment, school enrollment, religious instruction, and participation in extracurricular activities).

If the judge believes the parents cannot work together for the benefit of their child, sole custody is usually awarded to one parent. The other parent may be given parenting time, as determined by the court. If parenting time is ordered, the non-custodial parent is responsible for making routine and emergency decisions for the child during parenting time.

JOINT CUSTODY: At the request of either parent, the court must consider ordering joint custody. If the parents agree on joint custody, the court must order it unless the court determines that joint custody is not in the best interests of the child. When deciding, judges must state on the record their reasons for granting or denying the request. Judges may consider joint custody without a parent’s request. In addition to the normal factors considered when deciding custody, with joint custody judges must also consider whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.  The statute defines joint custody in a way which provides for joint legal custody, joint physical custody, or a combination of joint legal and joint physical custody.

THE FOLLOWING ARE TYPES OF JOINT CUSTODY:

JOINT LEGAL CUSTODY: Joint legal custody means that parents share decision-making authority as to the important decisions affecting the welfare of the child. Joint legal custody does not depend on the amount of time the child spends with each parent.

JOINT PHYSICAL CUSTODY: Joint physical custody means that there will be specific times when each parent will have the child with them. However, it does not mean the parents will necessarily share decision-making authority unless the judge also has ordered joint legal custody. As an example of joint physical custody, one parent could have physical custody during the school year, alternate weekends, and alternate holidays, with the other parent having physical custody during the summer months, alternate weekends, and alternate holidays. If the judge awards joint physical custody, the court order will usually include a statement regarding when the child shall reside with each parent. The court order may provide that physical custody be shared by the parents to make sure the child has contact with both parents. During the time a child resides with a parent, that parent decides all routine and emergency matters concerning the child.

In custody matters judges are asked to decide who will make decisions for a child and when a child is going to be with each parent. If parents in custody cases have not reached an agreement, it is important to have an aggressive attorney on your side that understands your needs.  It is important that you are properly represented before the judge with a knowledgeable, compassionate attorney from Kizy Law on your side. Call us today at 248-662-5499 for a free phone consultation.

Frequently Asked Custody Questions

How old does a child or children have to be before they can decide where to live?

When children reach the age of 18 years (or are determined to be emancipated by a judge), they can decide where to live. However, before age 18, the Child Custody Act requires the court to consider, “The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.” Judges usually place more emphasis on the preference of the child if the child demonstrates a greater level of maturity and understanding.

Do I have to get the court’s permission to move more than 100 miles from my current home if I only have parenting time with my child?

Yes, unless the other parent agrees, both parents were already living 100 miles apart when the judge signed your court order, sole custody was granted to the other parent, or the move results in the child’s two legal residences being closer to each other than before the move.

What do I do if I disagree with the Domestic Relations Referee’s recommendation for an order?

If you have a referee hearing, and you disagree with the recommendation for an order made by the domestic relations referee, you need to file an objection (a written disagreement filed with the court) and schedule a hearing before the judge assigned to your case within 21 days from the date the referee’s recommended order is handed or mailed to you.

What do I do if I disagree with what the judge orders?

Any decision made by a family division judge may be appealed to the Michigan Court of Appeals.

Can I simply call the friend of the court and tell the office that my child is now living with me if my ex-spouse and I agree?

No, a call to the friend of the court office notifying a staff person of the change does not produce a court order. A phone call or a letter will not stop a child support order, even if the child is now living with the parent paying child support. You will need a modification to your court order. If you and the other parent have informally agreed to a change in custody, and you wish to change the custody order, you should contact the friend of the court and ask about the procedures that have to be taken to modify the court order. The friend of the court may request that you and the other parent submit a written statement, stating the exact agreement that you have reached concerning custody, parenting time, and child support.  After the friend of the court receives the written statement signed by both parents, a formal stipulation may be prepared by the friend of the court office. The friend of the court office may ask that a parent file a motion asking to formally change the custody order, instead of preparing a stipulation or consent order.

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