I am a divorce lawyer in Oakland County, Michigan. My office is centrally located in Auburn Hills, which is easily accessible to Beverly Hills, Birmingham, Rochester, Clarkston, Troy, Bloomfield, Lake Orion, Oxford and Macomb County. Custody and parenting time or visitation with the children is often the most contentious and difficult aspect of a divorce case where there are minor children involved.
Can poor decision making and poor life choices negatively impact one's ability to obtain primary or joint physical custody?
Yes and a good example of this is Conner v Conner, Mich App No. 314426, December 5, 2013 (Unpublished). In that case, the mother originally had primary physical custody of the parties' minor children. However, the court modified this after the father filed a motion wherein he alleged that the mother had been leaving the children in the care of a babysitter for years in increasingly longer periods of time. Then an incident occurred where the babysitter would no longer provide the care for the children. This left the older child to care for herself and the younger child. The court held evidentiary hearings to determine the facts and ultimately changed custody to the father.
The facts of the case are somewhat sordid and the following is a brief synopsis. The parents originally split the parenting time equally until the mother moved more than 80 miles to be with her boyfriend about six months after the divorce. She also limited the father's ability to communicate with the children after that. The new boyfriend mistreated the children and the mother did not stop him. The father discovered this problem and refused to return the children to the mother until she verified she had moved out into her own apartment. The mother took the kids to live with a friend that had three other children, during this time, the mother often left the children alone so that the older child was left to care for herself, and the four other children.
About this time the mother started having another friend, Bobbi Jo watch over the kids when she was not available. Bobbi Jo testified that she watched the kids 12 out of every 14 days and 90% of those times were overnight. The children would arrive at her house before 6 pm, eat dinner with Bobbi Jo and her family and stay the night at her house leaving Bobbi responsible for getting the kids to school. The school often contacted Bobbi Jo instead of the mother on several occasions because the school could not because it could not contact the mother. Bobbi Jo had to pick up the daughter from a dance because the mother failed to show up and the school was closing. Despite this the mother refused to allow the father to have more time with the children when she was not available even though he repeatedly requested.
The children's teachers testified that the younger child was missing several assignments, had behavioral problems and was on occasion left after school when the mother did not pick him up. When the principal brought the issues to the mother's attention and advised the mother that she was concerned the problem came from a lack of parental participation in the homework, the mother's response was to become angry or belligerent. She apparently did this whenever the school staff contacted her to advise of the problems. The teacher testified that it appeared that the assignments were completed when the children where with their father.
It appears the issues came to a head when the older child contacted the father at 1 am crying and asking that he come pick them up right away. At the time, there was an argument between Bobbi Jo and her husband that was very disconcerting. It appears that Bobbi Jo discovered the mother had been having an affair with her husband while Bobbi was taking care of the children. Bobbi Jo decided that while she loved the kids and had been the primary care provider for them, she could no longer babysit for the kids. All of the above resulted in the father filing the motion claiming that the mother was not really providing the care for the children and that it would be in their best interests for him to have custody. The judge agreed and modified the previous orders of the court.
The mother appealed however the Michigan Court of Appeals upheld the decision of the divorce court. It found that there was not an established custodial environment with either party given the facts of the case, so the father only had to prove that the best interest factors favored him by a preponderance of the evidence (a more likely than not standard). The court found that the mother was not providing sufficient care for the children, was placing her own needs above those of the children, showed poor decision making and refused to deal with the issues that the school brought to her attention. The facts taken together lead to the conclusion that a change of custody was appropriate.
This is a sad case but it appears that the divorce court made the right decision and hopefully the children will lead a better life with their father.