If your child’s other parent has filed for custody, they are the Plaintiff in the case. You are the Defendant.
Being the defendant in a custody case isn’t like being a defendant in a criminal case. It doesn’t mean you did something wrong or you are in trouble. It doesn’t mean the other parent gets to make all the decisions in your custody case. It just means the other parent was the one to file the paperwork first and start the custody case.
It is important that you understand your rights and duties as a party to a custody case. This article tells you what you can expect.
When Your Child’s Other Parent Files a Complaint for Custody
Consider Talking to a Lawyer
If your child’s other parent has filed a complaint for custody, consider talking to a lawyer. This is especially important if your child’s other parent has ever been verbally, emotionally, or physically abusive to you or your children.
You cannot rely on the other parent’s lawyer to protect your interests. This is true even if you and the other parent agree on most issues. If a lawyer has filed paperwork for the other parent or has appeared in court for the other parent, that lawyer cannot represent you.
If you have low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.
Accepting Service of the Custody Papers
Maybe you know your child’s other parent filed for custody and you are thinking about trying to avoid service (delivery) of the custody papers. Avoiding service of custody papers won’t do you any good and could cause you problems.
Avoiding service doesn’t mean the other parent won’t be able to get a custody order. It may cause a slight delay at the beginning of the case, but it can result in you not knowing what’s happening in the case. The court may also make important decisions about your child without your input.
What If the Case Was Filed In Michigan but You Do Not Live in Michigan?
The custody case should be filed in your child’s “home state.” In general, your child must have lived in Michigan with a parent for at least six months in a row right before the case was filed (or since birth) for Michigan to be their home state. Michigan may also be the child's home state if the child is currently in another state, but Michigan was the home state within six months before the case was filed, and a parent continues to live in Michigan. You can still file an Answer and participate in the case even if you do not live in Michigan. Contact the court to find out if they have a remote hearing option if you would like to attend hearings without traveling.
If you’re not sure whether Michigan is the right state for your custody case, you may want to talk to a lawyer. Use the Guide to Legal Help to look for a lawyer or legal services in your area.
Read the Papers Carefully
If you have been served with a complaint for custody, read it right away. It is important to understand what your child’s other parent is asking the court to do.
Your custody case will determine the rights and duties of both parents towards your child. This includes custody (who the child lives with and who makes decisions for the child), parenting time, and child support.
When you are served with custody papers, you should get:
Summons: A custody case starts when the Plaintiff files a Complaint for Custody, Parenting Time, and Child Support and other papers with the court. When this happens, the court clerk will issue a Summons. The Summons is important because it tells the Defendant how long they have to file an Answer with the court.
Complaint for Custody, Parenting Time, and Child Support: The Complaint tells the court about you, your child’s other parent, and your child. It also tells the court what the other parent is asking the court to order. The complaint states what custody, parenting time, and child support arrangements the other parent wants.
Uniform Child Custody Jurisdiction Enforcement Act Affidavit: This form is required in all custody cases. It has basic information about your child, where they have lived in the past five years, and any prior court cases involving custody and parenting time of your child.
Verified Statement: This paper must be filed with the Friend of the Court in all custody cases. It has identifying information about you and the other parent, including social security numbers, driver’s license information, and information about your employment and income. This is a confidential document and is not placed in a public court file.
Application for IV-D Child Support Services: This paper is used to ask for Michigan child support services. These services include establishing a court order for child support and collecting support payments, among others.
A copy of the Friend of the Court Handbook: This handbook has information about the Friend of the Court's duties and procedures, the parties' rights and duties, and basic court procedures.
Confidential Case Inventory: If there are any other pending or resolved family court cases involving you and the other parent, or your child, you will also get this form. This form lists basic information about each court case.
When you are served custody papers, you might also get:
Ex Parte Order: Your child’s other parent may have filed a motion asking the court to enter an ex parte order at the start of the case. This could happen before you were even notified about the case. An ex parte order is an emergency order that a judge may sign without hearing your position. If you get an ex parte order, the order is already in effect.
Ex parte orders can be about many different things. The most common orders give temporary custody of children to one parent and order child support payments.
If you get an ex parte order with your custody papers, consider talking to a lawyer. If you don’t agree with the ex parte order, you only have 14 days from the day you are served to file an objection to it. After 14 days the ex parte order becomes a temporary order that will normally last at least as long as it takes for your custody case to become final.
Motion for Temporary Order: Your child’s other parent also may have filed a motion asking the court to enter a temporary order. Temporary orders often deal with the same issues as ex parte orders, but there is a hearing where both parties can tell the judge their positions. If you get a motion for a temporary order, it will include a notice of hearing that tells you the date, time, and place of the hearing.
Decide How You Want to Respond
If you do nothing after your child's other parent files for custody, the other parent can pursue the case without your input. This means the judge can sign a default Order Regarding Custody, Parenting Time, and Child Support with the terms the other parent asks for. This may be fine if you agree with what the other parent asks the court to order. But you should consider participating in the case if you want to give your input about custody, parenting time, and child support.
To participate in the case, you must prepare and file an Answer to Complaint for Custody, Parenting Time, and Child Support by the deadline on the Summons.
An Answer is a document where you explain whether you agree or disagree with each statement in the Plaintiff's Complaint. If you disagree, you will explain why. You can prepare and download an Answer to Complaint for Custody, Parenting Time, and Child Support using the Do-It-Yourself Answer and Counterclaim for Custody. Visit Responding to a Custody Case (Unmarried Parents) to find step-by-step instructions for filing the Answer, serving the other party, and continuing with the court process.
Only the Answer is required for you to participate in the case, but you may also want to file a Counterclaim.
A Counterclaim asks the court to decide custody, parenting time, and child support for the children, and it tells the court what you want to be included in the final order. Filing a Counterclaim also helps you make sure the case goes forward. If you don’t file a Counterclaim and the other party fails to move the case forward, the court can dismiss the case. Then, if you still want to get an order regarding custody, parenting time, and child support, you would have to start over by filing a new case. You can prepare and download a Counterclaim form using the Do-It-Yourself Answer and Counterclaim for Custody.
Pay Attention to Deadlines
There are strict deadlines in a custody case. If you want to file an Answer, and if you want to file a Counterclaim, you must do so within the time stated on the Summons. This is 21 days from the date of service if you were served personally (handed the papers), or 28 days from the date of service if you were served by mail or while you were outside of Michigan. You must also serve your Answer (and Counterclaim, if you are filing one) within the same time limit.
If you do not file an Answer by the deadline, the court can enter a default against you. If a default is entered, you cannot participate in the case until you file a motion to have the default set aside and the judge enters an order setting the default aside. If your case is defaulted, this means that the court can make decisions about your children without your input.
If you need a motion to set aside a default, you can use the Motion to Set Aside Default/Default Judgment (Domestic Relations) on the Michigan One Court of Justice website.
Serve (send) a copy of everything you file to the Plaintiff.
If the other parent files any motions in the custody case, a hearing will normally be scheduled. You can file a response to the motion and appear at the court hearing. You must file your response with the court at least three days before the hearing. You must serve your response on the other parent at least five days before the hearing if you serve the papers by mail, or at least three days before the hearing if the other parent is personally served.
What Will the Custody Case Process Be Like?
Your Answer is a response to each paragraph of the Plaintiff’s complaint for custody. You and your child’s other parent may agree on all the issues in your custody case. Or you may have a “contested” case because you don’t agree on all the major issues. Major issues include child custody, parenting time, and child support.
You can also file a counterclaim for custody with your Answer. This lets the court know what you would like to happen in your custody case.
Filing a counterclaim for custody can also help you make sure your custody case goes forward. If you don’t file a counterclaim for custody and your child’s other parent does something to have the original case dismissed, your custody case will end. Then, if you still want to have the court decide custody for you, you will have to start over by filing a new case and paying the filing fee.
Friend of the Court
The Friend of the Court (FOC) is part of the family division of the circuit court. The FOC helps the court in cases involving custody, parenting time, and child support. Some of the duties the FOC performs are:
- Investigating and issuing recommendations on custody, parenting time, and child support
- Helping the parties settle disputes during and after their case
- Providing enforcement services on existing custody, parenting time, and support orders
In some counties, all custody cases are automatically scheduled for a meeting with the Friend of the Court. There are different types of Friend of the Court meetings, such as mediation, where the Friend of the Court worker tries to help parties reach agreements on issues involving their children. Some types of Friend of the Court meetings may result in a recommendation to the judge on custody, parenting time, and support.
To learn more, read Friend of the Court Overview.
Domestic relations mediation is a process that the court can use to help resolve contested issues in a family law case. The mediator is a neutral person who helps you and the other party try to work out an agreement in your case. You could be referred to mediation if you agree to it or if the judge orders it. There may be a fee. A mediator may be a Friend of the Court mediator or a private mediator. To learn more, read Mediation and Other Forms of Settlement and Friend of the Court Overview.
Some cases are not appropriate for mediation. Your case might be excused from mediation for any of the following reasons:
- You or the other party have a personal protection order against the other
- Your children have been abused or neglected
- There has been domestic violence in your relationship
- You or the other party is unable to negotiate for themselves at the mediation
- There is reason to believe the health or safety of one or both of you will be put at risk by mediation
Finalizing the Custody Case
Your custody case might be resolved by:
- Default judgment, where you do not file an Answer or participate in the case
- Negotiated judgment, where you and your child’s other parent decide the terms together
- Mediated agreement, where you and the other parent meet with a mediator and decide the terms
- Court hearing, where the judge makes a decision because you and the other parent can’t agree on the terms
After a Custody Order Is Entered
After a custody, parenting time, and child support order is entered, both you and the Plaintiff must obey the terms of the order. If either party fails to do exactly what the order says, the other party can file a motion asking the court to enforce the order. The court continues to have jurisdiction over your children until they turn 18 years old, or in certain cases, until they are 19 ½.
Final orders can be changed, but you must meet certain requirements for the court to consider changing an order. The requirements are different depending on whether you are asking the court to change custody, parenting time, or child support. To learn more, read Changing a Custody Order, Changing Parenting Time, and Getting or Changing a Child Support Order.