Wednesday, March 09, 2011

How does the court decide which parent gets custody of the kids?

In almost every domestic matter that comes through the doors at the Peter J. Johnson Law Office, one of the client’s primary concerns is how he or she will get custody of his or her children.  The procedural steps to getting custody of the children are addressed in a previous post, but once the papers are filed and the motions are heard, how does the judge decide whether the kids live with mom or dad?

Custody disputes are governed by the Michigan Child Custody Act, MCL 722.21 et seq.  That statute says that all determinations of custody and parenting time of a child should be governed by the “best interests of the child.”  The statute also lists 12 factors that must be considered by the court in determining what the best interests of the child are.  Those 12 Best Interest Factors are:

a.     “The love, affection, and other emotional ties existing between the parties involved and the child.”

Under this factor, the court is likely to consider with which parent the child is more closely bonded.  If the child is young, this might be the parent to whom the child would run if he or she fell and scraped his or her knee.  For older children, it may be the parent that is more likely to hear about troubles at school or a new girlfriend or boyfriend.  The court will consider which parent is better able to communicate with the child and who knows the child’s interests and preferences better.  It is the factor of which parent is more closely bonded with 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 or her religion or creed, if any.”

This factor covers which parent is more actively involved in making sure the child is educated and raised appropriately.  The parent who makes arrangements with teachers for extra help, or who attends parent-teacher conferences will be favored, as will the parent who drives the child to weekly bible study or Sabbath services.  The court may also consider how each parent disciplines the child and what rules are set down in each parent’s household.  It is the factor of which parent is more in charge of the direction and nature of the education and guidance of the child.

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 this state in place of medical care, and other material needs.”

When considering this factor, the court’s primary focus is on who is able to provide for the material needs of the child.  One aspect of this is which parent has more financial resources available to spend on the child, but remember that the court also has the power to order child support to be paid to a less-well-off parent.  The court will also consider which parent generally takes the child to doctor’s appointments, and who stays home when the child is sick.  Generally speaking, this factor looks at who has been the primary caretaker of the child up to the point of the present domestic matter.

d.     “The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.”

This factor addresses the physical residences of the parents.  The court may consider whether the child has his or her own bedroom at each parent’s home, the size and quality of the home, its state of repair, and its geographic location.  The court may also address any other people living in the household including siblings, significant others, and relatives.  While there is a general tendency to prefer not to uproot a child, if the court finds that the child’s present living conditions are not in the child’s best interest, the court may decide that continuing the present situation is not desirable given the other option.  This is the factor that addresses where the child will live, rather than with which parent.

e.     “The permanence, as a family unit, of the existing or proposed custodial home or homes.”

This factor addresses more directly with whom the child will be living.  If there are siblings involved (including half or step-siblings), the court will consider the relationship the child has with those siblings.  The court will also, to an extent, consider the romantic tendencies of the parents.  For example, if one parent has a history of dating a new person every few months, the court may determine that this could be detrimental to a young child who may become bonded to that parent’s partners.  The court may also consider evidence that one parent has remarried, thus providing a more stable family unit.  This is the factor of with whom the child will live in addition to the parent.

f.      “The moral fitness of the parties involved.”

Under this factor, the court has the ability to consider the past and present poor choices of either parent.  However, case law specifically limits these considerations to what will affect either parent’s ability to adequately parent the minor child.  Therefore, just because one parent had an extra-marital affair, it does not mean that the court will find that the parent should never have custody of the child.  Instead, the court will likely focus its attention on the decisions the parties have made that have a direct impact on the child.  Examples of these decisions are drug and alcohol use, romantic interactions in the presence of the child, the use of excessive foul language in front or directed at the child, physical, emotional, or mental abuse, poor driving records, and poor criminal records.  Generally, this factor addresses which parent will be a better role model to the child.

g.     “The mental and physical health of the parties involved.”

When considering this factor, the court may look at any significant mental or physical disabilities the parents may have.  As with the previous factor, case law limits this inquiry to those disabilities that will affect the parents’ abilities to parent the child.  While asthma or poor eyesight may exist, it is not likely to interfere with a parent’s ability to be a parent, so the court is not as concerned with these kinds of infirmities.  However, if one parent is physically unable to care for a child’s needs, perhaps because they cannot lift the child to change a diaper that is something that the court may consider.  The court may also look at the mental health history of the parents.  Disorders such as bi-polar disorder and major depression often have a drastic effect on how a parent treats a child.  This is the factor that asks which parent is better physically and mentally capable of giving care to the child.

h.     “The home, school, and community record of the child.”

This is one of the few factors that look directly at the child him or herself.  It addresses how well the child has adjusted to the status quo.  The court may consider whether the child is doing well in school, if he or she has many friends, and whether he or she is involved in extracurricular activities.  The court will also consider whether the child acts out in the home or has had any difficulties with law enforcement.  This factor addresses how the child is doing where he or she is living now.

i.       “The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.”

This factor asks the child directly, with whom he or she wants to live.  The court will give some weight to this preference, but judges often say that they do not give the child carte blanche to decide where he or she wants to live.  In order to determine the child’s preference, if the court deems it appropriate (generally if the child is 12 years old or more), the judge will hold an in-camera review with the child.  This is an informal interview solely between the judge and the child.  The child will generally not be asked to testify, nor will either parent be present to influence or pressure the child.  The court has many safeguards in place to try to shelter the child from the fact that domestic proceedings tend to bring out the worst in both parents.  In the end, this is one factor among many, but it allows the child (who is old enough) to express a preference as to his or her future living arrangements.

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.”

The Michigan Child Custody Act expressly states a presumption that a child is best served by having a strong relationship with both parents (absent evidence to the contrary).  This factor asks which parent is more readily willing to facilitate the child’s relationship with the other parent.  In deciding this factor, the court may consider each parent’s tendency to cooperate with or discourage the parenting time of the other parent.  The court may also consider evidence that either parent is speaking negatively to the child about the other parent.  Generally, this factor addresses which parent will be better able to cooperate with the other parent with respect to the child.

k.     “Domestic violence, regardless of whether the violence was directed against or witnessed by the child.”

The court and the Michigan State Legislature take very seriously the impact of domestic violence on children.  For this reason, the Michigan Child Custody Act specifically addresses the presence of domestic violence in either of the lives of the parents.  This is a broadly defined factor and can include violence against the child, siblings, or even against the parents.  The court may consider the tendency of the child to assault his or her parents as well.  The impact of domestic violence upon the children who witness or are exposed to it cannot be overstated, and this factor allows the court to give the presence of such a circumstance serious consideration.

l.       “Any other factor considered by the court to be relevant to a particular child custody dispute.”

Every custody case is different.  There may be additional information that is very relevant to the best interests of a child that does not fall neatly into any of the above factors.  Or there may be circumstances that could be considered in a number of different factors.  One example of this is if the child has special needs.  If the child has some physical, mental, emotional, or educational disability, this can drastically affect the court’s determination of which parent is better equipped to deal with such a challenge.  The court may also consider the employment hours of the parents.  If you have a custody matter it is important that you talk openly with your attorney about the circumstances surrounding the child.  There may be additional factors that could swing the custody determination in your favor.

After the court considers the 12 Best Interest Factors, it is likely that some factors will favor one parent, and some the other, and that there will be some factors that do not favor either parent.  The court will then fashion a custody and parenting time arrangement that it feels addresses the best interests of the child.  In making this decision, the Michigan Child Custody Act says that a judge should not favor a mother over a father or vice versa based solely on gender, but should evaluate the circumstances in light of the above factors.  It will then fashion a parenting time schedule in line with those 12 Best Interest Factors.

So what if the circumstances change?  What if one parent gets a job that keeps him or her away from home when he or she was supposed to have parenting time, or a parent gets remarried or moves into a better home?  The court has what is called “continuing jurisdiction” over custody matters until the child is 18 years old.  This means that either parent can come back to the court and ask the court to reevaluate the best interests of the child if there has been a “material change in circumstances.”  This must be something more than just the everyday changes of life (such as the child growing older and changing schools), but courts are often willing to work with parents to find a new arrangement that best suits the parents and is in the best interests of the child.  If things simply are not working out, talk to your attorney to see whether there has been a change of circumstances sufficient to allow the court to take a second look at the arrangement.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have questions related to a Family Law matter such as a custody matter.