CHILD CUSTODY IN MICHIGAN – JOINT CUSTODY
What is “sole custody”?
“Sole custody” means physical and legal custody of the child is with a single parent. The child lives with that parent (physical custody), who has sole decision-making authority as to the important decisions affecting the child’s welfare (legal custody). Parenting time, or visitation, is a separate consideration, and is ordinarily awarded to the other parent based upon agreement of the parents, or by order of the court.
What is “joint custody”?
“Joint custody” means one or both of the following:
What is the difference between “Joint Legal Custody” and “Joint Physical Custody”? “Joint Legal Custody” means that both parents share the responsibility in making the important decisions affecting that child, such as medical, educational, and religious. In effect, the parents must consult with each other before important decisions are made. It should be emphasized that this means more than merely notifying the other of those decisions. Each must first contact the other before making an important decision affecting the child and discuss the issues in an effort to reach an agreement. In this kind of arrangement, one parent may have sole physical custody or the parents may share physical custody. “Joint Physical Custody” means that both parents share in the actual physical living or custodial arrangements of the child. In other words, the children would be living in each parent’s home on a rotating basis in a joint physical custodial arrangement. The sharing of time may be equal, or on some other percentage basis, agreed to by the parents, or ordered by the court.
In any joint custody arrangement, during the time the child resides with a parent, that parent has the authority to decide all routine, day-to-day matters concerning the child.
When is joint custody awarded to both parties?
In all custody disputes, the parents are advised of the option of having “joint custody.” Then, if either parent requests that the court look into this option, the court must then consider the granting of joint custody to both parties. On the other hand, if neither party asks the court to consider joint custody, and although the court could in theory still consider it, it probably would not. It likely would approach the case by deciding which parent should be awarded sole custody.
What factors does the Court look at in deciding whether to grant joint custody?
The court must consider the following:
Each of the 12 factors listed in the child custody statute, which are referred to as the “best interest factors” and which control custody disputes in Michigan. After reviewing these factors, the court must conclude that joint custody will be in the best interests of the child. Please refer to the separate document prepared by the Legal Assistance Center entitled “Child Custody in Michigan—Initial Determination.” This document explains in detail the 12 factors the court considers in deciding who shall be awarded custody. Whether the parents can cooperate and agree in the making of decisions affecting the child’s welfare.
What if the parents agree on a joint custodial agreement?
If the parents agree on joint custody, the court must award joint custody unless it decides that joint custody is not in the best interests of the child by examining the factors described above. However, the court’s decision must be based on “clear and convincing evidence,” which means that much more that 51% of the evidence favors the court’s decision not to grant joint custody. If the court agrees, the parents can define exactly what they want, specify if it will be joint physical, and/or joint legal, and detail the times, days, weeks, months, etc regarding where and when the children will be located.
What are the reasons why courts are hesitant to award joint physical custody? Joint custody, whether legal, physical or both, requires divorced or separated parents to get along and be able to communicate with each other. There may be many reasons why a court would decide that joint custody is not in a child’s best interest:
Where domestic or family violence exists, any kind of joint custody arrangement can be detrimental for children and unsafe for the abused or battered parent. Children will continue to be exposed to violence and abuse as the parents attempt to negotiate decision making. The abused parent will be at risk of more violence as the parents are required to continue to have contact. Some courts and child psychology experts believe that children living in two homes may be confused. Some courts may believe that the moving back and forth of the children between two homes would be too disruptive and not in the children’s best interests. If the court believes that the parents do not get along, or do not communicate well, then the court may conclude that a joint custodial arrangement in reality could be disruptive to the children who may be exposed to the parents’ conflict.
What is the advantage of having joint custody?
Where the parents are able to cooperate, to work together for the benefit of the child and appropriately negotiate their differences the child benefits from having two involved parents who are concerned about the child’s best interests. Joint custody may also recognize both parents’ past involvement with the child by continuing that involvement after the parents’ separate.
When a joint custodial agreement is made, what are some of its common provisions? Joint Physical, or Joint Legal, or both. The days of the week where the children will be, such as, for example, Monday through Thursday with one parent, and Friday through Sunday with the other. Alternate weeks, or months, including limited hours or days in the middle for the other parent. Being with one parent during the school year and being with the other parent in the summer with the other parent having some limited time with the children in the middle of those periods. Naming a person, the court, or Friend of the Court, to resolve unresolved decisions.
What occurs if the parties in a joint custodial agreement become unable to reach a mutual decision on a particular matter? As stated above, either parent is able to approach the court, by way of a motion, in order to have a hearing to decide the disputed matter.
To locate free or low cost legal assistance:
Visit the Michiganlegalaid.org home page and search for local assistance by entering your zip code in the box marked “Find a lawyer, organization or related service to help you with your problem.” or Look under "attorneys" in the yellow pages to find your local legal aid office, or Contact the Michigan State Bar Lawyer Referral Service at (800) 968- 0738. Persons age 60 or older, regardless of their income, may be able to receive free advice from the Legal Hotline for Michigan Seniors by calling (800) 347-5297. This article appears courtesy of Legal Assistance Center of Grand Rapids
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