If there is a kind of case that gets emotions involved, it is child custody matters. These matters can get costly and quickly spiral out of control. There are two types of custody: Legal and Physical. Legal custody is who makes the decisions about the child’s care and it is almost always joint. Physical custody means who the kids live with. Usually one parent with have primary physical custody and the other will have parenting time. Parenting time can be on a set schedule, or it can be reasonable and liberal which means the parties are flexible and make up a schedule as they go. This is generally done where the relationship between the parents is not very contentious. In some cases physical custody is entirely joint. Joint custody is favored by the courts where possible, and it is extremely rare for a parent to get no custody as this is associated with termination of parental rights. This would never happen absent a showing of neglect or abuse. Once child custody is set it can always be changed although, as you will see below, that is easier said than done.
It is impossible to talk about child custody without talking about child support. Part of the child support calculation is how many overnights a child will have with each parent. In a scenario where both parents make about the same amount of money and split physical custody 50/50, neither party is likely to pay the other much of anything. However, if one party makes a lot more money and only has the children every other weekend, that person will pay the custodial parent quite a bit of child support. To retain Garmo & Kiste, PLC, for assistance in these matters call us at (248) 398-7100 for a free consultation or contact us with a private message.
The test to change child custody is pretty simple: is it in the best interests of the child to change custody? However, in its actual application it can get quite complicated. First, the court will determine whether a change or circumstances or proper cause to modify the custody arrangement exists. What we can learn from this threshold question, is that Child Custody is something that it is important to get right the first time. Things like a new marriage by one of the parents, or a move are generally sufficient to constitute change of circumstances or proper cause.
Next, the court will determine if there is an established custodial environment.
An established custodial environment is one of significant duration in which a parent provides care, discipline, love, guidance and attention that is appropriate to the age and individual needs of the child. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence. Berger v Berger, 277 Mich App 700, 706, 747 NW2d 336 (2008).
If an established custodial environment does not exist, a change in custody can be made if it is in the best interests of the minor child by a preponderance of the evidence. If an established custodial environment exists, then it must be proven that the change is in the best interest of the child by clear and convincing evidence. As long as proper cause or a change in circumstances exists, regardless of the outcome of the established custodial environment analysis, the court will analyze whether the change is in the best interests of the minor child. This prong of the test only determines the level of analysis that will be applied: preponderance or clear and convincing evidence.
The so called “best interest factors” are:
MCL 722.23 defines the best interests of the child as follows:
“[B]est interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
- (a) The love, affection, and other emotional ties existing between the parties involved and the child.
- (b) 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.
- (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
- (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
- (f) The moral fitness of the parties involved.
- (g) The mental and physical health of the parties involved.
- (h) The home, school, and community record of the child.
- (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
- (j) 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.
- (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
If underlying the custody dispute is a divorce case, you may be aware that Michigan is a no-fault divorce state. However, this does not apply to child custody proceedings, where fault can be considered and often is under the moral fitness of the parties factor especially.
As you can see, child custody and support matters are very complex even before emotions get involved. They can become very costly very quickly. However, the right law firm will work to keep your costs down. Whether you are trying to get custody right the first time, or seeking to change it, the experienced attorneys at Garmo & Kiste, PLC have the answers. To retain Garmo & Kiste, PLC, for assistance in these matters call us at (248) 398-7100 for a free consultation or contact us with a private message. We are experienced Michigan attorneys with offices in Troy, MI.