Child Custody – Best Interests of the Children
The “Best Interest Analysis”

How does the court determine the “best interest” of a child in Michigan?

Trial courts are required to make “best interests” findings of fact in each of the following circumstances:

  • When a parent seeks to terminate a full minor guardianship;
  • When a parent or the parent with right to custody seeks to terminate a limited minor guardianship and the parent has not substantially complied with the limited guardianship placement plan;
  • When the court, following a review if it is in the best interests of the minor child, decides to terminate the guardianship;
    Parenting time requests;
  • Requests for removal of a guardian; and
  • Custody and parenting time decisions.

The probate court has jurisdiction and the family division of the circuit court has ancillary jurisdiction over the first five circumstances; the family division has jurisdiction over the sixth.

Best interests of the child are defined in the Child Custody Act of 1970, MCL 722.23. The “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court: (Note, the judge does not simply tally up the scores for each parent and declare a winner. Certain factors may be given more or less weight than others, in addition to the totality of circumstances involved in the case.

A Michigan court will look to the following things, which are laid out in MCL 722.23:

(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.

(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.

In Michigan the court will apply a “reasonable preference” as one of the factors in making a determination. A Michigan judge may question the child outside the courtroom in order to obtain the preference, which removes the child from having to state their preference in front of both parents. A Michigan court must state on the record if a preference was expressed, and if the preference was considered in the decision, but the court does not need to announce the preference, it will just be one factor of the court’s decision. In general, the older and more mature the child, the greater weight the preference in the court coming to a decision.

Yes, in Michigan non-custodial parents must not be denied access to records and information concerning their child unless that parent is specifically prohibited from having records by a protective order. These records may include records pertaining to school, medical, dental, day care and notification of meetings regarding the child’s schooling like a parent-teacher conference.

In Michigan sole custody means that one parent has primary physical custody as well as legal custody of the child. Joint custody in Michigan means that parents could share one or both of physical and legal custody.

Legal custody of a child in Michigan is defined as a parent having the responsibility over major decisions regarding the child’s upbringing, medical treatment, school enrollment, religious instruction and other similar matters.

Non-major decisions are to be made with the parent who has physical custody of the child in Michigan at the time that the decision is made. This means that the parent without legal custody of a child, may make certain decisions for the child while spending their parenting time.

In Michigan, a presumption exists that a fit parent’s decision to deny grand-parenting time does not create a substantial risk of harm to the child. A grandparent in Michigan may need to petition for time with grandchildren if the parents are denying them access. To rebut this presumption, and win on the issue, the grandparent must prove by preponderance of the evidence that the parent’s decision to deny grand-parenting time creates a substantial risk of harm to the child’s mental, physical or emotional health.

Yes, Michigan law prohibits a parent of a child in a joint custody arrangement in Michigan from moving more than 100 miles away from the child’s legal residence at the time the custody order was issued. There are exceptions in Michigan cases such as the other parent agreeing or if the original residence was initially 100 or more miles away, and this move actually brings the child closer.

Yes, but an award concerning child support, custody and parenting time in Michigan is always subject to the review by a Michigan court, and can be vacated if the judge finds that the award is not in the best interest of the child.

Michigan courts have held that duty to make support payments may be suspended if parenting time is denied unless the suspension of payments would adversely affect the children.

If the answer to this question is not clear, and one is strongly advised to speak to a Michigan family lawyer before taking action.

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