Michigan has a statute that dictates child custody and parenting time orders. The Child Custody Act of 1970, MCL 722.21 et seq. The statute is gender neutral and focuses on the best interest of a child or children and provides factors for the court to rest their decisions. The statute provides that “parenting time shall be granted in accordance with the best interests of the child.” MCL 722.27a(1). The statute creates a presumption that it is in the best interest of the child to have a strong relationship with both parents. There are factors in the statute that the court may consider in determining the frequency, and type of parenting time MCL 722.27a(6).
Today many judges of family courts have concluded that equal parenting time between parents is best unless proven otherwise. Parenting time is ordered week to week or in some other configuration that purports to give equal parenting time to the parents. Today a stay at home parent who was and is the parent who sacrificed his or her career to care for children will be amazed to discover that upon commencement of a divorce, that stay at home parent only gets to see and have the children half of the time by court order.
The presumption that a child should have a strong relationship with both parents has been translated by some judges to mean that it is in the best interest of children to have equal time with both parents. The same concept is also espoused by some child psychologists.
Parenting time with children is affected by the school system the children go to at the time of the separation and divorce. Parents may not be able to have housing during and after divorce that is in the school district that the children attend.
Parenting time is also affected by the place of employment of either parent. In Kalamazoo County we have parents who work in South Bend, Indiana; Grand Rapids, Michigan and all places in between.
Money is always a factor in parenting time. Our Michigan Child Support Formula, MCSF, bases child support on the number of overnights a parent has with the children. This formula causes fights over parenting time that have nothing to do with the best interest of a child.
The law requires judges to make sure that parenting time orders are in the best interest of the children. This requirement is there even if the parties agree to a parenting time arrangement. In practice, judges are very happy to enter orders of parenting time agreements unless there is an obvious bad concept in the agreement.
Most orders of parenting time are based on agreement of the parties. Most parenting time agreements are the result of the parties mediating the issue of parenting time. All issues before the family court are usually mediated and more than 98% of mediated issues are resolved in mediation.
How does the court determine what are the best interests of a child? MCL 722.23(B) defines the best interest of a child as follows:
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 or 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 this state 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 unity, 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. A court 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.
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.
They are the same factors that determine custody orders as well as parenting time orders.
Parenting has other considerations. Some parenting time requests amount to a change of custody.
Parenting time changes of a small nature require proof that amounts to a preponderance of evidence; not a high standard of proof.
Requests for a large parenting time change may require a larger quantum of proof. If the requested change is one that would destroy what is known as an established custodial environment the quantum of proof is by clear and convincing evidence.
What is an established custodial environment? An established custodial environment is one of significant duration in which a parent provides care, discipline, love, guidance and attention that is appropriate to the age, and individual needs of the child. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability and permanence.
If you have an established custodial environment it is going to take evidence that is clear and convincing to destroy it. The court cannot be concerned about how the established custodial environment came to exist, only that is exists.
If you are facing custody or parenting time issues, call us today to discuss your case in detail. 269-381-4471