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A Trend Toward Joint Physical Custody in Michigan?

I am a family law attorney also known as a divorce lawyer in the Rochester area of Oakland County Michigan.  In order to remain current regarding the law in my area of practice, I read every case decided by the Michigan Court of Appeals and the Michigan Supreme Court.  The Court of Appeals issued an unpublished opinion on July 19, 2012 which seems to be part of a trend towards the encouragement of divorce courts to grant or at least strongly consider joint physical custody of children.

 The Issue    

Should a “stay-at-home' parent during the marriage have a stronger claim to primary physical custody of a child during or after a divorce?

 The Answer

In the case of Goble v Goble, Michigan Court of Appeals, Docket No 307614, July 19, 2012 (unpublished), there was one minor child, the mother stayed at home with the child and cared for the child and the household, while the father worked a full-time job outside of the home.

 The divorce trial court entered an interim order at the beginning of the case which granted physical custody of the minor child to the mother while the father had parenting time on Wednesday, from 5:00 pm to 8:00 pm and Friday at 5:00 pm until Sunday at 6:00 pm every weekend.  At trial the court determined that there existed an established  custodial environment with only the mother and required the father to show by clear and convincing evidence that granting him custody was in the child's best interests as described by statute in Michigan.

Whether an established custodial environment exists is an intense factual inquiry and the same is established if over an appreciable time the child naturally looks to that parent for guidance, discipline, the necessities of life and parental comfort.  It may exist with both parents where a child looks to both the mother and the father for these things.  The Court of Appeals stated that where the evidence supports an established custodial environment with both parents, then neither the mother nor the father's custody may be disrupted except on a showing, by clear and convincing evidence that such a disruption is in the child's best interests.

The appellate court found that the lower family law court did not make findings of fact to establish its conclusion that the environment existed only with the mother other than to point out that the mother stayed at home to care for the child and the father worked outside the home.  It then reversed the decision of the lower court and stated that the great weight of the evidence established that the minor child looked to both of the parents for guidance, discipline, the necessities of life and parental comfort.  It further found that the relationship, as established by the evidence, with both parents was marked by qualities of security, stability and guidance such that there was an established custodial environment with both parents.  Finally, the appellate court held that neither party could disrupt the other's established custodial environment without showing by clear and convincing evidence that such a disruption was in the minor child's best interests.  It then remanded the case back to the lower court for a custody finding in line with its rulings.


In this case it appears that what the court is saying is that the divorce court should have granted joint physical custody to the parents as neither could change the existing established custodial environment of the other based upon the facts of the case.  This appears to be part of a trend in Michigan where the court is no longer looking simply to which parent has been the primary care-provider for the child or children during the marriage and then granting that parent primary physical custody.  In most cases, other than the absentee type parent, a case can be made for an established custodial environment which would then lead to a strong case for joint physical custody.

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