Child Custody Determination

  Child custody is determined by the Circuit Court (Family Division) in accordance with the Child Custody Act of 1970 (MCL 722.21). The act requires that the judge make he determination regarding custody "in the best interests of the child." The statute defines the "best interets of the child" as the sum of the 12 factors listed in MCL 722.23. The judge is required to hold a hearing and state on the record the facts and reasoning he or she is applying to each of the applicable factors. It is not as simple as deciding how many factors favor one parent or the other. The totality of the circumstances are looked at carefully. "Winning" on 8 of the 12 factors is not necessarily going to get some one custody.

   If a parent seeks to modify or change custody or parenting time at a later date, the statute allows the court to change its previous orders for "proper cause or a change of circumstances." Of course, the change must still be in the child's best interests.

    However, before a court can look into whether there is proper cause or a change in circumstances, it must first determined whether or not there is an "established custodial environment." An established custodial environment is "established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." (MCL 722.27). If such an environment exists, the parent seeking to change or modify custody must show by "clear and convincing evidence" that the change is in the best interests of the child. If no established custodial environment exists, then the burden of proof is only "a preponderence of the evidence." The clear and convincing standard is much harder to show and demonstrates the State's unwillingness to bounce children around with a good reason.

   Keep in mind that courts tend to favor joint custody and may reccomend this. Also, if one party pushes hard for this, the other party needs to be prepared to prove that sole custody with him or her is in the child's best interest.

   Also, it is important to remember that it is more persuasive to a judge to show why one person is a good fit for the children. It is not an effective strategy to simply say that the other parent is a bad person or unfit somehow. That is certainly relevant, but dont make the choice between the lesser of two evils.

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