Child Custody – Best Interest of the Child

Michigan uses a specific legal standard for determining child custody in most cases. This legal standard is known as “Best Interest of the Child.” As the name suggests, this means custody is awarded to the parent or guardian whom the court determines would best serve the child’s needs. This page provides information on how the courts determine this legal standard as well as instances where this standard applies.

How Best Interest of the Child is Determined

Best interest 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.

Situations Where This Standard Applies

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.

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