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Being a Defendant in a Custody Case

Contents

    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.

    Use the Guide to Legal Help to look for a lawyer in your area.

    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 custody. 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.

    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 (visitation), and child support.

    When you are served with custody papers, you should get:

    • Summons – A custody case starts when the plaintiff files a complaint 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 – The information in this paper is required in all custody cases. It has basic information about your children and where they have lived in the past five years.

    • 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.

    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.

    Pay Attention to Deadlines

    There are strict deadlines in a custody case. If you want to file an answer to the plaintiff’s complaint for custody, and if you want to file a counterclaim for custody, 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 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.

    Decide How You Want to Respond

    If you do nothing after your child's other parent files for custody, the other parent can pursue custody without your input, and you’ll end up with a court order based on the other parent’s terms. A default Order Regarding Custody, Parenting Time, and Child Support will be entered. This may be fine if you agree with all of the other parent’s proposed terms. 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 file an answer to the custody complaint by the deadline on the summons. You can also file a counterclaim for custody, which asks the court to decide custody, parenting time, and child support for the children and includes the terms you want. If you file a counterclaim for custody, you must file and serve it at the same time you file and serve your answer.

    You can use our Do-It-Yourself Answer and Counterclaim for Custody to prepare an answer or an answer and a counterclaim.

    What the Custody Case Process Will Be Like

    Answer

    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.

    Counterclaim

    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 Referrals, Investigations, and Recommendations

    The Friend of the Court office helps the court make custody, parenting time, and child support decisions. Depending on the county where your custody case is filed, you may have to meet with a worker from the Friend of the Court office.

    In some cases the Friend of the Court will investigate and make a recommendation to the court about custody, parenting time, and child support. A Friend of the Court recommendation is not a court order until it is signed by a judge. You will have an opportunity to object to a recommendation before it becomes an order. You must file your objection within 21 days after the recommendation is served. If you file an objection on time, you will have a hearing in front of a judge. To learn more, read Friend of the Court Overview.

    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.

    More Information 

    To learn more about custody and parenting time, read the articles Overview of a Michigan Custody Case, Custody and Parenting TimeThe "Best Interests of the Child" FactorsChanging a Custody Order, and Changing Parenting Time

    To learn more about child support and the role of the Friend of the Court, read the articles Child Support in a Nutshell, Getting or Changing a Child Support Order, and Friend of the Court Overview.