The general term “custody” encompasses two closely related, but different concepts: legal and physical custody. Put simply, legal custody refers to the ability to make significant decisions in your child’s life. Physical custody generally refers to where the child resides.
Custody determinations must be made at the initiation of a case, but can also be modified once established. Parties are encouraged to come to an agreement between themselves regarding custody matters. If an agreement cannot be reached, the court will hold a trial and ultimately decide these issues for the parties. In making a decision in a custody matter, the court weighs the “best interest of the child” factors. Those factors are as follows:
- The love, affection, and emotional ties existing between the child and the parties
- The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
- 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
- The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity:
- The permanence, as a family unit, of the existing or proposed custodial home or homes
- The moral fitness of the parties involved
- The mental and physical health of the parties involved
- The home, school, and community record of the child
- The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference
- 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 (assuming a relationship with each parent is good for the child)
- Domestic violence, regardless of whether the violence was directed against or witnessed by the child
- Any other factor considered by the court to be relevant to a particular child custody dispute.
If a court is asked to make a modification to an existing custody order, before the court gets to the analysis of the best interests factors, it must first make a determination that a change in circumstances or proper cause exists to review the factors. If the court does not find such cause by preponderance of the evidence, it will deny a motion to modify an order without review of the factors.
If the court proceeds to a review of the factors, it must also determine the standard by which to review the matter. If it finds that an “established custodial environment” exists with one parent or both parents, the moving party must prove that the requested change would be in the best interest of the child by clear and convincing evidence. If no established custodial environment exists, the court will make a determination based on a preponderance of the evidence.
Midland Michigan criminal, divorce and family law attorney Courtney L. Thom provides experienced and caring representation to clients throughout Mid-Michigan.