In some divorces, there are challenging and nuanced issues to be resolved between the parents when children are involved. Because of these issues, parents with children ordinarily are not permitted to finalize their divorce in less than 180 days, although that statutory waiting period often can be waived if the parents reach an agreement before then, and they jointly ask the court for a waiver. In cases where the parents cannot agree on parenting issues, a trial court sometimes will need to enter temporary orders governing custody and parenting time while a divorce is pending.
Typically, there are three main issues to be resolved in a divorce case that involves children:
Most states now have legislation requiring that in custody determinations, the parents have equal rights, regardless of the age of the child. Michigan has adopted this approach, abandoning the “tender years” presumption that previously had favored the mother in custody cases involving young children.
In cases where there has been domestic violence or abuse, those issues will have a significant impact on how custody and parenting time issues are resolved by the court.
Legal custody generally involves the right to make major decisions about a child’s education, health, and welfare. Typically, courts will order joint legal custody, which means that each parent has the right to access the child’s medical and school records and the right to be advised promptly of any serious illness, emergency, or other significant events that arise. It also means that the parents will have to consult with one another on major decisions relating to the child’s health, welfare, and education, which the court will decide for the parents if they cannot reach an agreement on their own.
Physical custody is a term that increasingly is having less practical significance in the law and in the lives of the divorcing parents and children. Physical custody historically has been interpreted to mean where a child primarily resides, but often in cases today, divorce judgments contain language giving the parents “joint physical custody.” In most situations, therefore, that means that the parenting time schedule then becomes the most important practical aspect of how the divorce impacts the lives of the parents and their children.
When making a custody decision, a court must try to maintain the child’s current custodial environment, taking into account the physical, emotional, and psychological surroundings and people to whom the child naturally has looked for comfort, guidance, and necessities throughout the child’s life.
Parenting time refers to the actual, practical schedule and living arrangements that the parents have with their child after the divorce or separation (although in some cases, a court may establish an interim schedule while the case is pending). It is most important to make sure that this schedule works well because this is the practical day-to-day parenting experience that a child of a divorce actually lives and comes to understand.
A parenting time schedule of the course of a calendar year usually involves different arrangements for three separate components of a child’s time:
Planning how parenting time is scheduled in each of these three areas often is the most important aspect of a divorce case involving minor children. When the parties privately are able to agree on a parenting schedule outside of the courtroom, that agreement almost always will be adopted by the court, without the need for a contested custody trial. Those private agreements invariably turn out better than contested trials, because the parties know their own family circumstances — and what is best for their own family, even if they may struggle to agree on the specifics — better than a judge or referee ever could.
When a court is forced to decide child custody, it is required under the Michigan Child Custody Act to consider each of twelve different factors (under MCL § 722.23):
a) The love, affection, and other emotional ties existing between the parties involved and the child
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/her religion or creed, if any
c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of Michigan in place of medical care, and other material needs
d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
f) The moral fitness of the parties involved
g) The mental and physical health of the parties involved
h) The home, school, and community record of the child
i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference
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
k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child
l) Any other factor considered by the court to be relevant to a particular child custody dispute
The Michigan Child Custody Act presumes (in MCL § 722.27a) that when a court makes parenting time decisions, it is in the best interests of a child to have a strong relationship with both parents. Under that statute, the court may consider the following factors when determining the frequency, duration, and type of parenting time to be granted:
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
(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.
(i) Any other relevant factors.
Attempting to change a child’s established custodial environment without the consent of the other parent is complex, and to be successful it requires careful planning and thought to reach a desired result. Typically, the parent requesting a change first must, as a threshold matter, persuade a court that there is sufficient evidence that a change is need. The required threshold depends on the type of change that is sought. After the threshold has been met, there may be a hearing to determine whether the change is in the child’s best interests.
This area of the law is extremely complex and nuanced, and for that reason, it is best to consult with an experienced family law attorney before taking any steps on your own to initiate a contested modification an existing custodial arrangement.
In Michigan, the primary residence of a minor child cannot be moved more than 100 miles from the child’s current location or outside of the state without either permission of the other parent or the court. If the non-custodial parent refuses to give permission, the custodial parent must file a motion to ask the court for permission to move. The court makes its determination based on several statutory factors (found in MCL § 722.31):
i. whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent;
ii. the degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parents planned to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule;
iii. the degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in the manner they can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent and whether each parent is likely to comply with the modification;
iv. the extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation;
v. domestic violence, regardless of whether the violence was directed against or witnessed by the child.
With careful preparation, many parenting issues can be resolved outside of the courtroom, either through private negotiations, meditations, or sometimes with the assistance of parenting coordinators or counselors. While the planning and documentation necessary to effectively design and implement these solutions can be complex, the results almost always are worth the endeavor. These private solutions ultimately are far more cost-effective and longer-lasting than conventional litigation, because they eliminate the need to pit one parent against the other, greatly reducing negative and acrimonious debates between the parties, and taking the children out of the middle of parenting disputes.