Sterling Law Office

When parents with minor children decide to go their separate ways, decisions and arrangements must be made for custody and care of the children. “Custody” in Michigan law is comprised of two elements, physical custody and legal custody. Physical custody means where the children reside and who takes care of them on a day-by-day basis. Legal custody means who has the right and responsibility to make important choices for the children, such as for education, health care, cultural and religious activity, and so forth.

Within the boundaries of this broad framework of custody, a variety of possible arrangements can be set up, depending upon the particular family circumstances. Following is an explanation of how custody matters proceed and definitions of the various forms custody can take.

Defining custody during family dissolution: the issue of custody arises when parents of minor children decide to separate. Some couples cooperate and negotiate for themselves an agreement about custody for the short-term, while the separation or divorce gets settled, and also for the long-term. When the parents cannot agree on a custody plan, a hearing for temporary custody is held by the family court to issue an order that outlines a temporary custody assignment. Temporary custody is often granted to the person who remains in the family home, or who typically has done the majority of day-by-day care of the children. Temporary custody orders very often determine what the permanent custody order will be.

Mediation: if custody or a divorce proceeding is contested, Michigan family court requires the parties to attend mandatory mediation. Mediation is a method the courts use to try to resolve disputes without going to trial. The parties meet with a professional mediator to review and attempt to come to agreement on issues of contention, such as custody arrangements. When a custody plan is agreed upon in mediation, it can include a requirement that future custody or visitation disagreements must be returned to the mediation process.

Custody evaluation: when custody is in dispute, the family court may order a custody evaluation before a custody determination is made. The evaluation will include interviews with the parents, the children, and possibly other knowledgeable witnesses. It can also involve psychological testing of the parents and children. A court-appointed social worker, psychologist or other mental health specialist carries out the evaluation and then makes a recommendation on custody to the court. The evaluation process may take from one to three months.

Modification of custody: after a permanent custody agreement has been reached by the parties or ordered by the court, parents can go back to court to request a change or “modification” in the custody arrangement. In Michigan and the majority of states, to protect the children and parties from the turmoil of continuing court battles and upheaval, the parent asking for a modification must show a significant change in circumstances or “proper cause,” and the request must be made and proceed through the family court in the state where the children live.

Sole custody: sole physical custody means the children will reside primarily with one “custodial” parent. The other is the “non-custodial” parent, who will have a schedule for visitation (also known as parenting time) when the children may stay with that parent, such as on alternate weekends, certain holidays or school breaks, etc. Some families elect for one parent to have sole physical custody while sharing legal (decision-making) custody jointly. One parent would generally only have both sole physical and sole legal custody if the other parent presented some form of harm or danger to the children.

Joint custody: joint physical and legal custody means the parents share the responsibilities for both day-by-day care and living situation of the children, as well as decision-making for the children. Parents must be cooperative with one another and able to perform as a parent team to be able to function well with joint custody.

Bird nest custody: as with baby birds and implied by the name, bird nest custody means the children stay in the pre-separation family home, or in a new family home, and the parents move in and out according to their schedule of visitation. Again, this arrangement, while it can be reassuring and give continuity and a sense of security to the children, requires that the parents collaborate, co-parent and not be at hammer-and-tongs with one another.

Split custody: not used as frequently as other types of custody because it entails separating brothers and sisters, a split custody situation is when each parent has custody of different children.

Making decisions about custody is always going to be very hard for a parent. Inevitably it means giving up some part of time with and rearing of children. The manner in which a custody agreement is reached and the building blocks for the future which are laid in the process are of monumental importance for parents and children. The family law attorneys at Sterling Law Office strongly recommend that parents seek early, experienced legal assistance before tackling custody matters or choices.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., July 3, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.

When a custody dispute over minor children occurs, it can be extremely upsetting and financially costly. Such contests are usually between the children’s parents, but may also be between a parent and a grandparent or other relative, a family friend, or the state. To prevail in a custody matter, the more knowledge and preparation you have, the better your chances become. It will not suffice simply to tell the family court referee or judge that you are the best person to raise the children. Your case will need to be well organized and thought-out, documented, and supported by witnesses.

There are 11 factors that Michigan law requires the family court to look at in deciding custody, based upon the best interest of the children. These factors are:

1. The love, affection and other emotional ties between the parties seeking custody and the children.
2. The capacity and disposition of the parties to give the children love, affecton and guidance, and continuation of raising the children in their religion or creed, if any.
3. The capacity and disposition of the parties to provide food, clothing, medical care and other material needs.
4. How long the children have lived in a stable, satisfactory environment and the desirability of maintaining continuity.
5. The permanence of the existing or proposed custodial home.
6. The moral fitness of the parties.
7. The mental and physical health of the parties.
8. The home, school and community record of the children.
9. The reasonable preference of the children, if the court deems them old enough to express a preference.
10. The willingness and ability of each party seeking custody to facilitate and encourage a close, continuing relationship between the children and the other parent.
11. Domestic violence.

Given this basis for custody assignment, the more favorable evidence you can bring of your fitness on the above factors to the family court, the stronger your argument for custody will be. If you wish to generate robust evidence in support of your custody petition, what follows are suggested actions toward that end.

Document your parenting. Keep a daily journal of activity with your children, including regular domestic interaction, to show how engaged you are with the children’s daily care. Record everything you do with and for them, down to small actions like packing the school lunch.

Schedule, show up for, and transport the children. Attend as many as possible events outside the home with your children – school programs and teacher meetings; taking or picking up children at school, and regularly chatting with teachers and office staff; sports and extracurricular activities; doctor, dentist and other appointments. This demonstrates the nurturance you give and also establishes people who can testify to the parenting you do.

Have fun with the children. Incorporate play, vacations and fun outings as much as possible, make photos of these occasions, these are “quality time” events.

Foster your children’s participation in family, volunteer, community service, church and other value- and character-building activities, to show your involvement in their moral education.

Document the opposing party’s strengths and weaknesses in childrearing. It will lend credibility to your case if you acknowledge whatever strengths the other party possesses. Equally, you should cite as objectively, non-emotionally as possible the other party’s childrearing shortcomings, including poor interpersonal skills; any reports the children have made or instances you have witnessed of neglectful, inappropriate or alienating behavior; unhealthy behaviors, mental illness or substance abuse; unsavory, immoral or illegal associates and activities; and, of course, violent or abusive behavior. Never lie about the other party or falsely testify to negative behavior, as this will end up hurting the children and the relationship they have with you.

Document your own childrearing strengths and weaknesses.The former list helps to make your custody argument, the latter gets you ready to address issues or problems the opposing party may raise.

Outline your financial strengths. List the marital assets, when and how each asset came into the marriage. List earned income you contribute, bills you pay, insurance, college savings, investments or other financial assets you provide for the family and the children. If you have had to reduce the time spent at home with your children because you are a breadwinner for the family or enhancing their financial security, be prepared to make the argument that you should not be penalized for this sacrifice and essential contribution to their welfare. Estimate your future earning potential, and outline how this will benefit the children.

Spell out how the children’s daily life will be organized with you — where they will reside, the suitability of the housing and its location, the hours you will be on-hand and when you will be gone for work, who will care for them in your absence, and so forth.

Describe the future educational plans you have for the children. Include how these will be financed, and how you will help the plans to be realized.

Prepare a witness list. Make a roster of those who can testify, if necessary, to your parental skills and commitment. Include relatives, family friends, school personnel, neighbors, doctors, and others. The longer the person has known you and the children, the more powerful their testimony can be.

Think about how it may hurt your case if you act in anger. Consider the harmful effect anger invariably has upon others, especially children; consider how it will be viewed by a judge or other court professionals, and how it might impact their assessment of you. If you need assistance managing your fear and anger so they do not overtake you and dictate your behavior, get it from a professional. Ask your doctor, minister or lawyer for a referral, or call Sterling Law Office, or visit www.divorceconnections.com for educational information and professional referrals.

Finally, find a lawyer who has experience, skills and knowledge in family law, and with whom you can enjoy a comfortable, trusted professional relationship. Just as you would not go to a family doctor for heart surgery, so you should only place your custody matter in the hands of a family law specialist. Interview as many attorneys as necessary until you find one who has a sound history with custody cases, who is focused on negotiating a best-possible agreement rather than eager for a court battle, and in whom you have confidence. In our opinion, nothing is more important to the result of a case, no matter how thoroughly you prepare, than selecting the right, capable lawyer.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., January 3, 2008

The information presented in this article is for general information only and should not be construed to be legal advice.