Family Law

How do Judges Decide Child Custody in Michigan

By Melissa Heinig, Attorney
Divorcing parents often find it challenging to agree on custody and visitation matters. Learn more about how courts make custody decisions in Michigan.

Although emotions run high in divorces with children, parents can make co-parenting less stressful by communicating and working together. Parents should try to agree on custody and visitation, but if they can't, a judge will have to decide for them.

An Overview of Custody in Michigan

Legal Custody

Legal custody refers to a parent’s right to make decisions relating to the child’s health, education, and general welfare. Common issues that arise with legal custody include the child’s education, major medical procedures, extracurricular activities, and religious upbringing. The court may order sole (one parent) or joint (both parents) legal custody. If the court awards sole legal custody, the parent will have a right to make these choices on their own. If the court awards joint legal custody, both parents share decision-making authority.

Physical Custody

Physical custody, or physical care, refers to the parent’s time with the child, and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, a court can award sole or joint physical custody. Courts often award joint physical custody to assure the child will have frequent and continuing contact with both parents, but it's important to understand that this doesn’t necessarily mean that the child will spend the same time with each parent. Sole physical custody means that the court recognizes one parent as the “custodial parent,” and the child will spend the greatest amount of time in that person’s home with visitation between the child and the other parent.

Will the Court Award Joint Custody?

Joint legal custody means that both parents would be involved in making major decisions about the child. Joint physical custody means that both parents can cooperate, will have shared time with the child, and provide routine care for the child. If parents agree to joint custody, the court will approve the plan if it's in the child’s best interests.

If parents can’t agree, the court may order that they attend mediation—a joint meeting with a neutral third-party to help them reach an agreement. The cost of mediation depends on the individual mediator, and the court will order both parents to pay for half of the expense.

Visitation and Parenting Time

If the court awards one parent sole physical custody, the next step is to determine a parenting time (visitation) schedule for the non-custodial parent and the child. The court will often encourage the parents to work together to draft a schedule that works best for everyone, especially the children. If parents can’t agree, the court will evaluate parenting time factors to determine a schedule.

Michigan offers two types of parenting time: reasonable and specific. A reasonable parenting time schedule works if parents need to keep visitation flexible, but if parents have a disagreement, the custodial parent will be able to restrict parenting time. Parents who have had trouble communicating in the past, or who want a detailed parenting plan, should request a specific parenting time schedule.

A successful calendar will include:

  • a detailed schedule for visitation—including holidays, school vacations, and birthdays
  • information on pick-up and drop-off locations
  • who will be responsible for transporting the children during visitation, and
  • who will pay for transportation.
Parenting plans should also have a provision that allows each parent to have access to a child’s official records, including medical and educational information.

In some cases, overnight or unsupervised time with a parent may not be in the child’s best interest. If a judge finds that a parent’s exercise of parenting time would result in direct physical harm or significant emotional harm to the child, the court may order supervised visits, which will take place in a county or state facility with a professional supervisor present.

How Do Courts in Michigan Determine Custody?

Courts will always encourage parents to work together to determine their ideal custody arrangements. If parents can’t agree, the court will have to decide custody based on the best interests of the child. The court doesn’t favor either parent, so both will have an opportunity to show or tell the court why they believe they should be granted custody. During the hearing, the court will consider:

  • the love, affection, and other emotional ties between each parent and the child
  • the parent’s ability to give the child love, affection, and guidance, and continue raising the child in their religion
  • each parent’s ability to provide the child with food, clothing, and medical care
  • the length of time the child has lived in a stable environment
  • the permanence of the existing custodial home (has a parent moved frequently?)
  • the parent’s moral fitness
  • the parents’ and child’s mental and physical health
  • the child’s home, school, and community record
  • the child’s preference
  • each parent’s willingness and ability to facilitate and encourage a close and continuing parent-child relationship with the other parent
  • any history of domestic violence, and
  • any other relevant factors.

Once the court creates a parenting plan, both parents must follow it precisely.

Modifying Custody and Visitation

When parents want to change custody in Michigan, they must first prove with clear and convincing (very strong) evidence that there is no established custodial environment (ECE) with either parent. An ECE is present if the child naturally looks to one parent as the person to give love, affection, and discipline. Usually, there is an ECE present with a custodial parent.

If a parent proves there is no ECE, the court will only consider modification if a parent can prove that there has been a substantial change of circumstances in the parents’ or child’s life since the last order. Some examples of significant changes may include a relocation by either parent or unexpected medical or educational needs of the child.

If the parent is successful in showing that there is a change in circumstances, the court will evaluate the best interest factors listed above to establish a new custody and parenting time order. Parents should remember that until the court issues a new order, the previous custody and visitation rules will remain in effect.

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