The most difficult issue in many divorce cases, is how to handle custody of the children. There are actually two types of custody, legal custody and physical custody as well as a parenting time schedule. Generally, legal custody refers to the ability to have a say in the child's upbringing, such as medical decisions, where the child will attend school and religious upbringing. In most cases the courts in Michigan will grant joint legal custody. When the parties have joint legal custody, they should consult with one another regarding all such decisions before making them and should give the opportunity to the other parent to be involved in the decision and present, for instance, at doctor appointments or teacher meetings. In addition, it means that neither parent can move more than 100 miles without the consent of the other parent or the court.
Can I Get Joint Physical Custody of My Kids?
Physical custody is more along the lines of what people think about when they refer to custody. To determine custody, the court is required to determine what is in the best interests of the child. This requires an analysis by the court of the "best interest factors" which are 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 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. 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.
The court must address each of these factors but it does not need to give equal weight to each factor when making its decision regarding custody. One client said it reminded her oddly of bingo when listening to the court address the factors and make its decision.
In the past, it was much more common for the court to grant sole physical or primary physical custody to the mother. Now, particularly in Oakland and Macomb Counties, it is common for the court to grant joint physical custody to the parties. This is in part due to a cultural change, a recognition by mental health and development specialists of the importance of both parents and changes to the statues that govern custody. However, the very term custody has lost some of its meaning because the parenting time schedule is really what spells out where the child will be and with whom on any given day. So really, the proper question to ask is "can I get equal parenting time"?
Can I Get Equal Parenting Time With My Kids?
The answer is that it really depends on your situation but the courts in Oakland and Macomb tend to lean much more towards granting a schedule that allows for equal time with both parents or close to equal. The traditional schedule of every other weekend is much less common today. Truly the best thing to do if you are concerned that you might be facing a divorce or separation that will involve questions of custody or parenting time is to schedule a consultation with a family law attorney. The attorney can asses your situation and provide insight into how the court might look at your case and maybe provide some strategies that should enhance your chances of getting equal time with your kids. Please do not hesitate to contact us to schedule a consultation.