A custody case is one type of court case that can be filed to determine the rights and responsibilities of both parents towards their child. This includes custody (who the child lives with and who makes decisions for the child), parenting time, and child support.
Sometimes a person other than a parent can file a custody case, such as a grandparent or legal guardian. This article talks only about the most common type of custody case: between the child’s parents. If you are a guardian or non-parent relative who wants to file for custody, you can use the Guide to Legal Help to find a lawyer in your area.
Can I File a Custody Case?
Filing a custody case is one way to get a custody order. If you already have a certain type of family court case that involves your child (for example, a support case or a paternity case), you may need to file a motion regarding custody in that case instead. Or if you are married to the other parent, a divorce or separate maintenance case may be a better option for you, depending on the circumstances.
You Can File a Custody Case If You and the Other Parent Are Not Married and Have an Affidavit of Parentage
If you and the other parent signed and filed an Affidavit of Parentage to establish paternity and you don't already have a court case involving custody, parenting time, and/or child support, you can file a custody case.
You can use our Do-It-Yourself Custody Case (Unmarried Parents) tool to prepare the forms you need. File your case in the Michigan county where your child lives.
You Can File a Custody Case If You Are Married to the Other Parent, but You Are Not Filing for Divorce or Separate Maintenance
Decisions about custody, parenting time, and child support between married parents are usually made in a divorce case. If you are married, living separately, and don't want to file for divorce, you can file a custody case. Another option is to file for separate maintenance. You may want to talk to a lawyer to find out if a custody case or separate maintenance case makes more sense for you. 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.
To learn about separate maintenance, read Alternatives to Divorce: Separate Maintenance and Annulment. Michigan Legal Help does not have forms for separate maintenance or custody cases between married parents.
When You Can’t File a Custody Case
In some situations, you can’t file a custody case. You can't file a custody case if you haven't established paternity of your child. Or if you have an existing court case involving your child, you may need to file a motion for custody in that case instead of a complaint to start a custody case.
If Paternity Has Not Been Established
A father's legal paternity must be established before you can file a custody case.
To do this, the mother and father can sign and file a sworn statement called an Affidavit of Parentage. This is the simplest way to establish paternity. No DNA tests or court orders are needed. If there is any doubt about paternity, get a paternity test before you sign the affidavit. When you sign the Affidavit of Parentage, you waive your right to a paternity test. An Affidavit of Parentage often gets signed by the parents when their child is born, but it can be done any time during the child’s life.
However, an Affidavit of Parentage cannot be used to establish paternity if the mother was married to another man at the time of conception or birth, unless a judge has determined the husband is not the father.
You can use this Affidavit of Parentage form to establish paternity. Follow the instructions included with the form to complete and file the Affidavit of Parentage. The form must be signed in front of a notary public or a qualified witness. A notary can usually be found at a bank. After the Affidavit of Parentage is filed with the Central Paternity Registry, the father has parental rights. When there is an Affidavit of Parentage in place, Michigan law gives initial custody to the mother until either parent starts a custody case.
Once the Affidavit of Parentage is filed, either parent can file a custody case asking the court for an order deciding custody, parenting time, and child support. You can use our Do-It-Yourself Custody Case (Unmarried Parents) tool to prepare the forms you will need.
Signing the Affidavit of Parentage is voluntary. If either parent does not agree to sign it, it cannot be used to establish paternity. In that situation, the mother, father, or prosecuting attorney can file a paternity case. If the parties don’t agree about the child’s paternity, the court will order DNA tests. If DNA tests show the alleged father is the biological father, the judge will sign an Order of Filiation. An Order of Filiation establishes paternity, making the alleged father the legal father. Custody, parenting time, and child support decisions would then be made in the paternity case.
If You Already Have a Family Law Case
If there is already a family law case involving the paternity, custody, or support of your child, any new custody decisions should be made in that case. Either parent can file a Motion Regarding Custody in the existing case to get or change a custody order.
Your situation may be more complicated if you have a family law case from another state, but you and your child live in Michigan now. If you are in this situation, talk to a lawyer. 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.
If the Mother Was Married to Someone Else While Pregnant
A husband is the legal father of a child conceived or born during his marriage. No one can sign an Affidavit of Parentage for a child who already has a legal father. To change the legal father, the mother, her husband, or the biological father must first get a court order revoking (undoing) the husband's paternity.
To ask the judge to revoke the husband's paternity, you must file a Motion or Complaint to Determine Child Born Out of Wedlock. You can use the Do-It-Yourself Revoke Paternity Established by Marriage tool to prepare the forms you need to do this.
If the judge revokes the husband's paternity, then the biological father can become the new legal father by Affidavit of Parentage or court order. To learn more, go to the page that applies to you, Revoking Marriage-Based Paternity: For the Mother or Birthing Parent or Revoking Marriage-Based Paternity: For the Biological Father/Parent.
If the biological father becomes the legal father by signing an Affidavit of Parentage, either he or the mother can start a custody case. If the judge signs an order making him the legal father, either party can file a Motion Regarding Custody in the paternity case to get or change a custody order.
What If My Child's Other Parent Is in Prison or on Active Military Duty?
Your custody case can be complicated if your child’s other parent is on active military duty. It may be difficult to find and serve papers on a service member stationed overseas. There are also state and federal laws that give people on active duty extra protections in civil cases. The service member parent can request a stay or an extension of the stay at any time before the final order. If the other parent doesn’t file an Answer to your custody complaint, the court must appoint a lawyer for them before it can enter a final order. If you are filing for custody and the child’s other parent is on active military duty, you may want to hire a lawyer. If you need a lawyer and have low income, you may qualify for free legal help. Use the Guide to Legal Help to find a lawyer or legal services in your area.
You must notify the court if your child’s other parent is in prison. In your complaint, you must state the following:
- That the other parent is incarcerated
- The other parent’s prison number
- The other parent’s location
- That a telephonic or video hearing is required by Michigan Court Rule 2.004
You must also have your child's other parent served with court papers even if they are in prison. To learn more, read How to Serve Custody Papers.
Where Should I File My Custody Case?
You must file your custody case in your child’s “home state.” A court in Michigan will only have jurisdiction if Michigan is 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. If your child does not live in Michigan now, or has not lived in Michigan for the past six months, Michigan may not be your child’s home state.
Even if you and your child are not U.S. citizens or if your child's other parent lives in another state, you can file a custody case in a Michigan court if Michigan is the child's home state.
Generally, you will file your custody case in the Family Division of the Circuit Court in the county where your child lives. If you’re not sure whether Michigan is the right state for your custody case or if you have an existing family law case involving your child, you may want to talk to a lawyer. 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.
What If I Filed a Custody Case but Later Want to Dismiss It?
You can file a Dismissal (Domestic Relations) form any time before the other party files an answer or motion in the case. If the other party has already filed an answer or motion, you would have to get their agreement to dismiss the case. The case will continue if your child’s other parent filed an answer or motion and wants the custody case to continue.
If you dismiss your custody case and change your mind later, you’ll have to file a new case. Orders from the first case will not automatically be restored if you file another custody case later.
What Gets Decided in My Custody Case?
Your custody case will address the issues of custody (who the child lives with and who makes decisions for the child), parenting time, and child support.
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.
Once physical custody is determined—joint or sole—parenting time must be established. 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.
How Custody and Parenting Time Decisions Are Made
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.
Other Parenting Time Considerations
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.
Children have a legal right to financial support from their parents. Parents have a legal duty to support their children. A parent cannot avoid paying child support by agreeing to have their parental rights terminated or by agreeing not to have parenting time.
Michigan law requires judges to order child support based on the Michigan Child Support Formula unless the result would be unfair or inappropriate. You can use the MiChildSupport Calculator to find out what the Formula calculation might be in your case. If you do not have a lawyer, the Friend of the Court can calculate child support for you. In some counties, a meeting with the Friend of the Court will be scheduled soon after the custody case is filed. In other counties, the judge may refer your case to the Friend of the Court to calculate child support. If neither of these things happen, you can file a motion asking the judge to refer child support to the Friend of the Court.
Even if you and the other parent agree to a deviation (a support amount different from the Formula calculation), you still have to convince the judge that the Formula amount would be unfair or inappropriate. If you are asking for a deviation, you must fill out an extra form called the Uniform Child Support Order Deviation Addendum. Bring the form to your court hearing along with the completed Uniform Child Support Order.
The Michigan Child Support Formula Manual lists 20 reasons that the Formula amount could be unfair or inappropriate. They are called deviation factors. You can find them in Section 1.04(E) of the Manual. If you want to ask the court for a deviation from the Formula and any of these factors apply to your situation, bring them up at your hearing and refer to them in your Deviation Addendum. You may want a lawyer to help you with this. It can be hard to prove that there should be a deviation from the Formula.
You and your child’s other parent may not agree to a support amount less than what the court orders.
What Is the Court Process Like?
Your custody case will be in the family division of the circuit court in the county where your child lives. Court procedures vary from county to county, but you can expect the following steps in your case.
Starting the Custody Case
Each case starts with the plaintiff (the person asking for the court’s help) filing papers that ask the judge to establish custody for the child or children. If you file the case, you are the plaintiff. Your child’s other parent is the defendant.
You can use our Do-It-Yourself Custody Case (Unmarried Parents) tool to complete the forms you need to start a custody case. After you file your forms and have the defendant served with copies, the defendant has the option of filing an Answer and a Counterclaim.
The Answer is a document that responds to each paragraph of your Complaint for Custody, Parenting Time, and Child Support. In the Answer, the other parent should explain which parts of your complaint they agree with and which parts they disagree with. The other parent can prepare and download an Answer form using the Do-It-Yourself Answer and Counterclaim for Custody. They can find step-by-step instructions for filing the Answer in Responding to a Custody Case (Unmarried Parents).
If the other parent files an Answer and they don’t agree on all the issues in your custody case, you may want to consider talking to a lawyer. 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.
Answer/Counterclaim or Default
If you are the defendant in a custody case (meaning the other parent filed the case), there are strict deadlines you must follow. To participate in the case, you must file and serve an Answer by the deadline on the Summons. Do this 21 days from the date of service if you were served in person (personally handed the Summons and Complaint for Custody) or 28 days from the date of service if you were served by mail or while you were outside of Michigan.
The Answer is a document that responds to each paragraph of the Plaintiff's Complaint for Custody, Parenting Time, and Child Support. In the Answer, you should explain which parts of the complaint you agree with and which parts you disagree with. You can prepare and download an Answer form using the Do-It-Yourself Answer and Counterclaim for Custody. You can find step-by-step instructions for filing the Answer in Responding to a Custody Case (Unmarried Parents).
You must file an Answer within the proper time period in order to avoid being in default. If a default is entered, you are not allowed to participate in the custody case unless you file a motion to have the default set aside and the judge grants your motion. If you are defaulted, the judge can make decisions about custody, parenting time, and child support 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.
You can also use the Do-It-Yourself Answer and Counterclaim for Custody to prepare a Counterclaim. This is optional. A benefit of filing a Counterclaim is that if the Plaintiff fails to move the case forward, you as the Defendant would have the ability to keep the case going. For example, if the plaintiff was supposed to schedule the final hearing and did not do so, then you would be able to do it instead. This would prevent the court from dismissing the case for lack of progress.
Either party can ask the judge for a temporary order for custody, parenting time, and child support before the judge enters a final order. A temporary order is usually in effect until the final order is entered at the end of the case. Michigan Legal Help cannot help you ask for a temporary order. You may want to consider getting a lawyer's help to ask the judge for a temporary order if you think you need one. 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.
Sometimes a party will ask a judge to sign an order without holding a hearing. This is called an ex parte order. This can happen if the judge believes serious harm will occur if an order is not entered right away. The parties will have the chance to object and present evidence later. For more information, read Ex Parte Orders in Family Court.
Friend of the Court
The Friend of the Court office assists judges in making custody, parenting time, and child support decisions. In some courts, the Friend of the Court arranges a meeting with the parties to investigate (gather information from the parties regarding custody, parenting time, and child support) and makes a recommendation to the judge afterwards. In other courts, the Friend of the Court will meet with the parties to try to help them agree on the issues, and will prepare a recommendation to the judge if the parties can't agree. Friend of the Court practices differ from court to court.
A Friend of the Court recommendation is not a court order until it is signed by a judge. You will get an opportunity to object to a recommendation before a judge signs it. If you object, you will have a hearing in front of the judge.
To learn more about the Friend of the Court, read Friend of the Court Overview.
Reaching an Agreement
If you and the other parent agree on custody, parenting time, and child support terms, you can ask the judge to sign an order that includes all the terms of your agreement. This is called a consent order. If you have a meeting with the Friend of the Court and tell them about your agreement, they may draft a proposed order for you. Otherwise, it is the plaintiff's job to prepare the consent order. You can use the Do-It-Yourself Custody Case (Unmarried Parents) to do this. If you already used this tool to prepare your other custody forms, you can log back into your saved answers and update them to include your agreement. Then download your updated order. For instructions on how to return to your saved answers, read LawHelp Interactive Instructions for DIY Tools.
The judge must believe the terms you agreed to are in your child's best interests. The judge is likely to approve an agreement on custody and parenting time if the terms give the child time with both parents.
If your agreement on child support differs from the Michigan Child Support Formula amount, the judge can only approve it if a party shows that applying the Formula amount would be unfair or inappropriate. For more information, read the section on child support above or read Child Support in a Nutshell.
Alternative Dispute Resolution, Settlement, or Trial
The judge may order you and the other parent to participate in an alternative dispute resolution (ADR) process to try to settle your case. This might be Friend of the Court mediation or another Friend of the Court meeting, or it could be mediation with a private mediator. To learn more, read Friend of the Court Overview and Mediation and Other Forms of Settlement.
If you and the other parent can't agree, you will have a custody hearing in front of a judge. Representing yourself at a custody hearing is not simple. If you get to this stage, consider talking to a lawyer. 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.
After you reach an agreement or have a custody hearing, the court will sign a final order in your case. In general the plaintiff is responsible for preparing the final order based on the agreement or on what the judge decides, but in some cases the Friend of the Court may help you prepare a consent order if you and the other party have agreed on the issues.
A final order can be changed later, but it is not easy to prove that custody should be changed. To learn more, read Changing a Custody Order.
To learn more about getting an initial custody order, go to Filing a Custody Case (Unmarried Parents).
After the Final Order – Residence of Children
After a judgment or custody order is entered, the following apply:
- The child’s residence may not be moved outside Michigan without the court’s approval;
- The parent with custody must tell the Friend of the Court in writing if the child’s address changes; and
- If the parents share legal custody of the child, the child has a legal residence with both parents and the “100-mile rule” may apply.
If either parent wants to move the child's residence more than 100 miles from where the child resided when the custody case was filed, the 100-mile rule requires the parent to get the court's approval first.
The 100-mile rule applies to moving within the state of Michigan unless:
- You have sole legal custody
- Your custody order allows you to move more than 100 miles away
- The other parent agrees to the move
- You and the other parent lived more than 100 miles apart when the custody case was filed OR
- The move would bring the child closer to the other parent’s home
If you need to move to a safe place with your child to escape domestic violence, you may do so until the court makes a decision on your request to move.
To learn more, read Moving with Children After Separation or Divorce.