A custody and parenting time order may be granted as part of a divorce case, custody case, or other type of family court case. Custody and parenting time are important decisions that affect where your children live, how often they see each parent, and who makes important decisions for them. Read this article to learn how custody and parenting time decisions are made.
Legal Custody and Physical Custody
There are two types of custody, legal and physical. Legal custody means having the right to make important decisions about your children, such as where they go to school, what religion they are (if any), and major medical decisions. Physical custody refers to the children's living arrangements.
Custody can be “sole” or “joint.” Sole custody means only one parent has custody. Joint custody means the parents share custody. If parents share legal custody, they must make important decisions about their children together. If parents share physical custody, the children live with each parent some of the time.
Parenting time is the term used in Michigan for the time a child spends with each parent when parents do not live in the same home. When one party is awarded sole physical custody, typically that parent has a substantial amount of parenting time or time with the child, and the other parent has less. When parties have joint physical custody, although that doesn’t have to mean equal parenting time, it is often equal or close to equal.
Parenting time can be granted for specific dates and times, or it can be "reasonable parenting time." With reasonable parenting time, parents work out parenting time as they go, without a specific schedule. With reasonable parenting time, if there is a disagreement, you will need to file a motion for the judge to resolve the conflict.
If you have specific parenting time, that means there is a specific schedule. If you are comfortable talking with your child’s other parent, you may be able to agree on a parenting time schedule. If you cannot agree on a schedule, you may get a court-ordered schedule instead.
Custody and Parenting Time Before There Is a Court Order (Unmarried Parents)
Only legal parents can have rights to custody and parenting time. The person who gives birth to a child is automatically a legal parent. In Michigan, if you are married to the parent who gives birth, you are automatically the other legal parent of the child. This is true even if you are not the child’s biological father.
If you are the biological father of the child, but you were not married to the mother when the child was born or conceived, then you are not the legal father until you take certain steps to establish your paternity.
There are a few ways to become a legally recognized parent in this situation. These include:
- Signing an affidavit of parentage together with the other parent (this is usually done at the hospital after the child is born) or
- Getting a court order that names you as the legal father
To learn more about establishing paternity, watch this video from Lakeshore Legal Aid:
Even if legal paternity has been established in one of these ways, before there is a court order dealing with custody, the mother has initial custody of the child. This means the mother has sole authority to make decisions for the child until there is a court order regarding custody.
If the parents are unmarried and there is no court order in place, the mother does not need court permission to move with a child. However, things could become complicated if the other parent files a custody case. If you are a mother in this situation, talk to a lawyer before moving with your child. If you have low income, you may qualify for free legal services. Whether or not you have low income, use the Guide to Legal Help to find lawyers and legal services in your area.
If you are the father, you may want to get a custody and parenting time order to ensure your ability to see your child. Your family law case may be more complicated if your child is moved from Michigan before the case is finished. If you are worried the other parent might move, it may be a good idea to get help from a lawyer. If you have low income, you may qualify for free legal services. Whether or not you have low income, use the Guide to Legal Help to find lawyers and legal services in your area.
Getting an Initial Custody and Parenting Time Order
In many cases, parents are able to agree on the custody and parenting time arrangements for their court order. They can reach an agreement without the court's involvement, or with the help of the Friend of the Court.
The Parenting Time Guideline created by the Friend of the Court Bureau is a helpful resource for parents who need to put together a parenting time schedule. The Guideline includes sample schedules you can use as a starting place to create your family's schedule. It also has information about the developmental needs of children at different ages in connection to parenting time. The Guideline addresses specific topics such as long distance parenting time, parenting time with a parent who is in prison, and how to address domestic violence situations.
If the parents can't agree on custody and parenting time, the judge will make decisions on these issues.
When a judge makes a custody decision, they have to consider the established custodial environment (ECE) and the best interests of the child. When they make a parenting time decision, they must consider the best interests of the child.
Established Custodial Environment
The law says generally that custody arrangements for children should remain stable. Because of that, the judge will always ask whether the child has an established custodial environment (ECE) with one or both parents. If so, it will take more evidence for a judge to change the current arrangement.
When deciding if there is an ECE, the judge looks at what the child's life is like. For example, does the child look to one (or both) of the parents for love and affection, food, housing, and other needs? Is the child old enough to have been in the current arrangement for a significant amount of time?
If the judge decides there is an ECE, then the party who wants to change the ECE must show by clear and convincing evidence that the change is in the best interests of the child.
If the judge decides there is no ECE, then the winning party will be the one who shows by a preponderance of evidence that the proposed custodial arrangement (the type of custody that party wants) would be in the best interests of the child.
The Best Interest Factors
If the parents do not agree on custody and parenting time, the judge will decide these issues based on the best interests of the child. This legal test requires the judge to consider the following factors:
Factor (a): The love, affection, and other emotional ties existing between the parties involved and the child;
Factor (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;
Factor (c): 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;
Factor (d): The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;
Factor (e): The permanence, as a family unit, of the existing or proposed custodial home or homes;
Factor (f): The moral fitness of the parties involved;
Factor (g): The mental and physical health of the parties involved;
Factor (h): The home, school, and community record of the child;
Factor (i): The reasonable preference of the child, if the judge considers the child to be old enough to express a preference;
Factor (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. A judge may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent;
Factor (k): Domestic violence, regardless of whether the violence was directed against or witnessed by the child;
Factor (l): Any other factor considered by the judge to be relevant to a particular child custody dispute.
At the hearing on custody and parenting time, each parent will have the opportunity to present evidence related to the best interest factors above.
When the judge considers the best interests of the child, the law does not require them to give each factor equal weight. The judge decides how much weight to give each factor.
In general, children have the right to be close to both parents. They have the right to parenting time unless the judge finds there is clear and convincing evidence that it would be a danger to the child's physical, mental, or emotional health.
If the judge determines that a parent is dangerous to the child, they may order supervised parenting time or no parenting time at all. For example, this can happen if a parent is likely to:
- Physically or sexually abuse the child
- Fail to take care of the child and meet the child’s needs
- Put the child at risk through alcohol or drug abuse
- Put the child at risk of harm in some other way
How much and what type of parenting time each party gets will be up to the judge if the parties do not agree. Like custody decisions, judges make parenting time decisions by considering the best interests of the child factors listed above. The judge can also use the parenting time factors below to decide how often each parent has parenting time, how long visits are, and whether parenting time should be supervised:
Factor (a): Any special needs of the child;
Factor (b): Whether the child is nursing;
Factor (c): Whether abuse or neglect of a child during parenting time is likely;
Factor (d): Whether abuse of a parent during parenting time is likely;
Factor (e): The inconvenience and impact on the child of traveling for parenting time;
Factor (f): Whether a parent is reasonably likely to exercise parenting time;
Factor (g): Whether a parent has frequently failed to exercise reasonable parenting time;
Factor (h): The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent;
Factor (i): Any other relevant factors.
Changing a Custody Order
What is a Final Custody Order?
A final custody order is a judge’s decision after an evidentiary hearing, or an order based on the parents' agreement if the judge has adopted it. It does not include a temporary order used while a divorce or custody case is pending.
Proper Cause or Change of Circumstances
When a party files a motion to change a final custody order, a judge approaches this decision differently than when making the first custody order. The judge can't consider changing a custody order unless the party asking for the change shows there is either "proper cause" or a "change of circumstances."
Proper cause or a change of circumstances is more significant than normal life changes. It must be something that has or could have a big impact on the child's well-being. Only after proper cause or a change of circumstances is shown can the judge reconsider what custody arrangements are in the best interests of the child.
Evidence Needed to Change Custody
If the judge finds there is proper cause or a change of circumstances to reconsider the best interests factors, the judge must still look at whether an ECE exists.
If the judge finds there is an ECE, a higher standard of proof is needed to change custody. The person wanting the change must prove by clear and convincing evidence that the change is in the best interests of the child. If the judge finds that there is no ECE, the person seeking the change in custody must prove by a preponderance of evidence that the change is in the child's best interests.
To learn more about changing custody, read Changing a Custody Order.
Domestic violence is one factor the judge must consider when making custody and parenting time decisions in your case. The judge must consider domestic violence even if the other parent was not violent towards the children, and even if the children didn't see the violence. It is important to let the judge know about the violence and what you're afraid of.
Even if they have been abusive, the other parent may still get parenting time or some form of custody. The judge must consider joint custody if either parent asks for it. The judge will have to decide whether you and the other parent can make parenting decisions together. When there has been abuse, it may be hard to communicate and make decisions together. This may be one reason to ask for sole custody.
If you can't find a lawyer and you are deciding what type of parenting time arrangements you want to ask for, review the Parenting Time Guideline created by the Friend of the Court Bureau. The Guideline recommends a specific parenting time schedule instead of a schedule that provides for "reasonable parenting time." A specific, detailed schedule should greatly reduce the need for you to communicate or negotiate with the abuser. Read the full section on Safety Concerns in the Guideline for other helpful information.
Sometimes a judge will order parenting time supervised by a neutral third party when there are safety concerns. Consider asking for supervised parenting time if:
- You're worried about your safety;
- You're worried about your children’s safety; or
- The other parent has threatened to keep your children from you.
The court will appoint the supervisor, but you may want to provide ideas for possible supervisors. Examples include:
- A visitation center
- A domestic violence agency
- A grandparent
- Another relative
- A friend
Parenting time may also be safer for you if you exchange your children in a public place. Some communities have supervised visitation centers that may supervise visits or exchanges.
If a court order gives the other parent custody or parenting time, you must follow the order unless the judge changes it or another court order, like a personal protection order (PPO), forbids it. A PPO can’t be used to award custody of children, but in some situations your PPO can limit or stop contact between the abuser and your children. The judge may order this if they think it is important for your safety or your children’s safety. If you need a PPO, see Filing for a Personal Protection Order — Domestic Relationship.
If the other parent abused you, it may be a good idea to get help from a lawyer. If you have low income, you may qualify for free legal services. Whether or not you have low income, use the Guide to Legal Help to find lawyers and legal services in your area.
If the other parent has been violent or threatening, you may be concerned that they will take or keep your children without your permission. Maybe they have threatened to take your children or have kept them from you before.
In most cases, it is not kidnapping for someone who is a legal parent to take or keep their child. A parent can only be charged with kidnapping if they do this in violation of a valid custody order. If you do not have a court order giving you custody, the other parent cannot be charged with parental kidnapping. The same is true for you.
If you take your children to a domestic violence shelter or elsewhere to protect them from an immediate threat of physical or mental harm, you have a defense against parental kidnapping. This is true even if you need to violate a custody order to take them to the shelter or other safe place.
If you are afraid the other parent will take or keep your children without your permission, you might be able to get an emergency or temporary custody order. If you are concerned that the other parent might take your children out of the country, you may be able to get the judge to hold your children’s passports. Visit the U.S. Department of State website to learn more about what you can do in this situation.
If you are concerned about the other parent taking, keeping, or hiding your children from you, you may want to consider talking to a lawyer who specializes in divorce and custody matters. If you have low income, you may qualify for free legal services. Whether you have low income or not, you can use the Guide to Legal Help to find lawyers in your area. Even if you do not qualify for free legal help, there may be a lawyer referral service in your area, and you may be eligible for a free or low-cost consultation.
Friend of the Court
Depending on your court, you may be required to meet with the Friend of the Court to see if they can help you and the other party reach an agreement on custody and parenting time. To learn more, read Friend of the Court Overview.
To learn about divorce with minor children, read Introduction to Divorce with Minor Children. You can use our Do-It-Yourself Divorce tool if you want to prepare forms to file for divorce.
To learn about custody cases, read Overview of a Michigan Custody Case. To learn more about the best interests of the child, read The "Best Interests of the Child" Factors.
Finding a Lawyer
You might decide you want a lawyer to help you with your case. 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.