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The "Best Interests of the Child" Factors


    How Are Custody and Parenting Time Arrangements Made?

    You and your child’s other parent can agree on a custody and parenting time plan, or the judge can decide. The judge will often approve a custody and parenting time plan the parents have made together. This is especially true if it allows the child to spend time with both parents. The judge must also believe that the custody and parenting time plan is in the best interests of your child.

    If you and the other parent don’t agree, the judge will decide custody and parenting time using the Michigan Child Custody Act's “best interests of the child” factors. Each parent will have the chance to explain what they want the custody and parenting time arrangements to be, and why. Family members, teachers, expert witnesses, and others can also testify.

    The judge may also look at other evidence, like school records and medical reports. However, the judge can only review records if:

    • The parties agree to the review or
    • The records are admitted into evidence under the Michigan Rules of Evidence

    The rest of this article outlines how a judge makes decisions about custody and parenting time.

    Is There an 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 to change the current arrangement.

    When deciding if there is an ECE, the judge looks at what the child's life is actually like, not just what the order says. For example, the judge will consider whether the child looks to one (or both) parents for love and affection, food, housing, guidance, and other needs. The judge will also consider whether the child is old enough to have been in the current arrangement for a significant amount of time.

    The “Best Interests of the Child” Factors

    There are 12 factors the judge uses when deciding what custody and parenting time arrangements are in the “best interests of the child.” Here are the factors with sample questions the judge might ask about each one. Each factor is important, but the judge doesn’t have to weigh them all equally. The judge might decide some of the factors in your case are more important than others. The judge must consider and make a decision about each factor.

    The judge may also look at the whole picture to decide what custody and parenting time arrangements are in the best interests of your child.

    Factor (a). The love, affection, and other emotional ties existing between the parties involved and the child:

    • Who is the child bonded with?

    • Who does the child go to with a problem?

    • How does each parent relate with the child?

    • How much time does each parent spend with the child each day?

    • How often does each parent make the child’s meals?

    • How often does each parent bathe the child, put the child to bed, and read the child stories?

    • Are the parents able to separate the child’s needs from their own?

    • How affectionate is the child with each parent?

    Factor (b). The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue educating and raising the child in the child's religion or creed, if any:

    • Who stays home from work if the child is sick?

    • Who usually handles school and homework issues?

    • Who usually handles sports and other activities?

    • How does each parent discipline the child?

    • How does each parent talk to the child?

    • How often does each parent involve the child with grandparents, uncles, aunts, and others?

    • Who takes the child to church or other religious events (if the family is religious)?

    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:

    • Who buys clothes, toys, food, etc. for the child?

    • Who attends to any special needs of the child?

    • What is the earning capacity of each parent?

    • Who has flexibility in their work hours?

    • How stable is the job of each parent?

    • Who can provide health insurance for the child?

    • Who makes doctor’s appointment for the child and takes the child to the doctor?

    • Who arranges for childcare?

    • If one parent earns more than the other, can child support be used to make things more equal?

    • If there is a child support order, is the parent paying support? If there is no order, are the parents providing for the child's needs?

    Factor (d). The length of time the child has lived in a stable, satisfactory environment, and the desirability of continuing it:

    • Who provides a stable, secure, and safe home environment for the child?

    • Who can provide more stability for the child?

    • Has either parent moved recently and, if so, why? How has the child adjusted to the move?

    Factor (e). The permanence, as a family unit, of the existing or proposed custodial home or homes:

    • Who is in each parent’s family unit?

    • Will the child live with siblings or half-siblings?

    Factor (f). The moral fitness of the parties involved:

    • Has either parent had an extra-marital affair the child knew about?

    • Has there been physical or verbal abuse, alcohol or drug abuse, poor driving records, physical or sexual abuse of the child, criminal records, or other negative behaviors by either parent?

    • How have these behaviors affected the child?

    • Have these behaviors had a significant influence on that parent's parenting skills?

    Factor (g). The mental and physical health of the parties involved:

    • Does either party have a physical or mental health problem that significantly interferes with their ability to care for the child?

    Factor (h). The child's home, school, and community record:

    • How does each parent encourage and influence attendance at school?

    • Who goes to school conferences and activities?

    • Who will make sure the child sees and talks to their friends?

    • Who supervises the child’s home responsibilities, like chores?

    • Who helps the child with homework?

    Factor (i). The reasonable preference of the child, if the judge considers the child to be old enough to express a preference:

    • It is up to the judge to decide whether a child is old enough to state a preference. The judge will give more weight to this factor with children who are older or more mature. There is no age at which a child can decide where he or she wants to live.

    • The preference of the child will not be shared with anyone, including lawyers, parents, or siblings.

    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:

    • How will each parent cooperate with the parenting time schedule?

    • Does either parent criticize the other parent in front of the child?

    • Will each parent encourage a relationship between the child and the other parent?

    Factor (k). Domestic violence, regardless of whether the violence was directed against or witnessed by the child:

    • Has either parent been threatening, emotionally abusive, verbally abusive or physically violent?

    • Has there been a pattern of domestic violence, including physical and non-physical abuse?

    Factor (l). Any other factor the judge considers relevant:

    • If a child has special needs, how does each parent take care of those needs?

    • Has either parent threatened to kidnap the child?

    • Has either parent missed visits with the child or failed to return the child from visits?

    • Are there siblings or other children whose custody is relevant to this child’s custody arrangement?

    • Are there significant others or new spouses whose relationship with the child affects the child’s best interest?

    • Is there a possibility that two or more of the children may be separated?

    • How far apart do the parents live? (Especially with regard to parenting time schedules).

    To learn more about how child custody and parenting time are decided, read Overview of a Michigan Custody Case and Custody and Parenting Time.

    Friend of the Court

    Depending on your county, your case may go through a Friend of the Court (FOC) process. If you have a meeting or hearing with the FOC, you will not have a hearing in front of a judge on custody and parenting time unless you or the other parent objects to the Friend of the Court recommendation. If no one objects, the recommendation will typically become the final order in your case. To learn more about the Friend of the Court, read Friend of the Court Overview.