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Overview of a Michigan Custody Case

Contents

    A custody case is a court case that determines the rights and responsibilities of parents toward their children. Sometimes a person other than a parent (such as a grandparent or legal guardian) can file a custody case. This article talks only about the most common type of custody case — between the child’s parents.

    Can I File a Custody Case?

    A custody case is not right for everyone. If you aren’t married to your child’s other parent, you must establish paternity before you can get a custody order. If you already have a court case with the other parent, the court may need to decide custody issues in that case. If you are married to the other parent, a divorce or other type of case may be a better option.

    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, you established paternity and your child has a legal mother and father. You can file a custody case.

    You can use our Do-It-Yourself Custody Case (Unmarried Parents) 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 Are Not Filing for Divorce

    Decisions about custody, parenting time, and child support for married parents are usually made in a divorce case. If you are married, living separately, and no divorce case has been filed, you can file a custody case, but you cannot use our forms to do this.

    A custody case won't resolve property or debt issues. It won’t get you a divorce. You may want to talk to a lawyer about your options if you need a custody order but don't want a divorce. Use Find a Lawyer to look for a lawyer in your area. 

    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. If you have an existing court case with the other parent, you may need to file a motion for custody in that case instead of a complaint to start a custody case.

    If You Are Not Married to the Other Parent and Haven't Established Paternity

    If you were never married to the other parent of your child, you must establish paternity before you can start 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 court 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. 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) to do this. 

    If Either Parent Will Not Sign the Affidavit of Parentage

    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. Paternity cases are usually filed in the family division of the circuit court in the county where the child or the mother lives.

    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 may be made in the paternity case.

    If There Is Already an Existing Child Support or Paternity Case

    If there is an existing Michigan paternity or child support case for your child, custody and parenting time 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 is more complicated if you have a paternity or child support case from another state. Orders issued in that case, as well as the other state’s laws, can affect a Michigan court’s authority to make decisions about your child. If you are in this situation, you may want to talk to a lawyer about your options.

    If you need a lawyer and are low-income, you may qualify for free legal help. Use Find a Lawyer to look for a lawyer 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 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, use the toolkit I Need to Revoke Paternity Established by Marriage: Tools for the Mother or I Need to Revoke Paternity Established by Marriage: Tools for the Biological/Alleged Father.

    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.

    Is Michigan the Right State for 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. 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.

    Jurisdiction is not simple. If you’re not sure whether Michigan is the right state for your custody case, you may want to talk to a lawyer. If you need a lawyer and are low-income, you may qualify for free legal help. Use Find a Lawyer to look for legal help in your area.

    What Gets Decided in My Custody Case?

    Your custody case will determine the rights and responsibilities 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.

    Legal Custody and Physical Custody

    Legal custody means the right to make major decisions about raising a child. This includes decisions about the child’s medical care, school, religion, and other things. A parent with sole legal custody makes these decisions alone. Parents with joint legal custody make these decisions together.

    Physical custody means who the child lives with. The court may grant joint physical custody, meaning the child lives with each parent some of the time. Or, the court may grant sole physical custody, meaning the child lives with only one parent. Normally, if a parent has sole physical custody, the other parent has regular parenting time (visitation).

    Parenting Time

    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. The court will normally order parenting time if either parent asks for it. If one parent is awarded sole physical custody, the other parent will probably have regular parenting time with the child. If the parents have joint physical custody, the parenting time schedule will often say when the child will be with each parent, including birthdays, holidays, and school breaks.

    Sometimes a parenting time schedule gives the parents about the same amount of time with their child. This is common with joint physical custody. In other situations the child is with one parent most of the time, and the other parent has parenting time a couple times a week or less. This is common with sole physical custody.

    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

    Your parenting time schedule should meet the needs of your child, you, and the other parent. If you are comfortable sitting down and 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 will get a court-ordered schedule instead.

    Child Support

    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 (visitation).

    The judge will order child support based on the Child Support Formula, unless using the formula would be unjust or inappropriate. Among other factors, the formula takes into account income, the number of children, and the number of overnights each parent has with the children. You can use the MiChildSupport Calculator on the Michigan Department of Health and Human Services (MDHHS) website to find out what the support amount 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.

    You and your child’s other parent may not agree to a support amount less than what the court orders.

    To learn more about child support, read Child Support in a Nutshell. To learn about the role of the Friend of the Court, read Friend of the Court Overview.

    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) 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.

    Answer/Counterclaim or Default

    If you are served with a custody complaint and don’t file an answer or counterclaim within the proper time period, the court can enter a default. This means your custody case can proceed without your input. You can use our Do-It-Yourself Answer and Counterclaim for Custody to create an answer and counterclaim you can file with the court and avoid being in default.

    Temporary Orders

    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. Use Find a Lawyer to look for a lawyer or legal services near you.

    Sometimes the judge will enter 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.

    Friend of the Court Referral/Investigation/Recommendation

    The Friend of the Court office assists the judge in making custody, parenting time, and child support decisions. The Friend of the Court may meet with the parties, investigate, and make a recommendation to the judge about custody, parenting time, and child support. This depends on the county where your case is located.

    A Friend of the Court recommendation is not a court order until it is signed by a judge. You 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 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 court to enter a consent order. The judge must believe the terms you agreed to are in your child's best interests. But he or she is likely to do so if the terms give the child time with both parents. If you meet with the Friend of the Court, explain your agreement to the Friend of the Court worker and they may draft an order for you.

    If your agreement on child support deviates from the Michigan Child Support Formula, the judge must approve it. The judge must determine that applying the formula in your case would be unjust or inappropriate in order to approve a different amount.

    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 could include conciliation or mediation. To learn more, read 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 or Friend of the Court referee. Representing yourself at a custody hearing is not simple. If you get to this stage, consider talking to a lawyer. If you need a lawyer and are low-income, you may qualify for free legal help. Use Find a Lawyer to look for legal help in your area.

    Final Order

    After you reach an agreement or have a custody hearing, the court will enter a final order in your case. Final custody orders can be changed, but only after proving there has been a change in circumstances or that proper cause exists to change the order. To learn more, read Changing a Custody Order.

    To learn more about getting an initial custody order, go to the toolkit I Need a Custody Order.

    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 in order 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.