Protect Your Children, and Your Rights
It is always troubling when people decide to break up or to get a divorce, but when children are involved, the stakes are even higher. .Unfortunately, it is rarely the case that both parents can put their differences aside and decide calmly, and carefully what is in the best interests of their child or children.
Quite often, one parent wants to deny the other rights
to the children to use the kids as leverage, or just
to hurt the parent. Other times, one parent isn't fit to have the children.
If your rights to your children are at stake, you need someone who is experienced, and capable of protecting you and your children. Having the right representation
can be the difference between being an "every other weekend" parent, or primary custody.
In Michigan, there are two seperate and distinct forms of custody; Legal and Physical. In simple terms, legal custody gives you the right to have access to your child's medical and school records. Physical custody is about who the children are with more often. In order to determine whether one or both parents should be awarded custody in Michigan, the Courts evaluate what is in the best interests of the child(ren) utilizing 12 different factors. Those are:
1) The love, affection, and other emotional ties existing between the parties involved and the child.
- With whom does the child bond more?
- Who does the child approach with a problem?
- Who empathizes more with the child?
- Who spends more hours per day with child?
- Who prepares the child’s meals?
- Who bathes and/or puts the child to bed, and reads the child stories?
- Who has the ability to separate the child’s needs from one’s own?
- To whom does the child openly show signs of affection?
2) 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.
- Who stays home from work if the child is sick?
- Who takes responsibility for involvement in educational matters?
- Who is responsibility for involvement in extracurricular activities?
- Who disciplines the child, and how?
- Is there verbal abuse, and by whom?
- Does one parent enable extended family involvement more than the other with grandparents, uncle, aunts, and others?
- Who has involved or might involve the children in a religious creed
3) The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs.
- Who makes purchases for the child?
- Who attends to special needs of the child?
- Who is responsibility for involvement in extracurricular activities?
- Who has greater earning capacity?
- Who is able to adjust working hours based on the needs of the child?
- Who has better certainty of future income?
- Who can provide health insurance for the child?
- Who schedules and takes the child to medical appointments?
- Who arranges for childcare?
- Differences in income capacities of the parents or a parent’s reliance on public assistance should not be decisive. The court can require child support and alimony to minimize the differences.
- Who has provided up until the trial, and who can provide in the future, a stable, secure, and safe environment?
- Who can provide continuity?
- In a custody dispute taking place within a divorce case, as compared to a case occurring later after the divorce, where the child was living with both parents, neither parent necessarily has an advantage here. However, if the parents were separated for some time before the divorce proceedings began, the parent having temporary custody from the start of the case and until the actual custody trial later, may have an advantage in the later custody trial, depending upon how long that temporary period was. This factor is particularly relevant in a later custody hearing after a divorce has occurred and a parent is seeking a change of custody.
- In whose custody will the family unit not be split?
- This factor focuses on the permanence of the family unit, not the acceptability of the homes or any child care arrangements.
- Have there been extra marital affairs known by the child?
- Has there been physical or verbal abuse, alcohol or other substance and drug abuse, poor driving records, physical or sexual abuse of the children, criminal records, or other illegal or offensive behaviors?
- The judge must assess whether or not any of these behaviors, including a parent living with another person, has had a negative effect on the child or a significant influence on that parent's parenting skills.
- Does either party have a physical or mental health problem that significantly interferes with the ability to care for the child’s well being?
- Age of parents compared to age of child.
- It is important to determine if any disability has an impact on actual parenting. Otherwise, such illnesses may be considered irrelevant.
- Who better encourages and influences attendance at school?
- Who is actively involved in school conferences and activities?
- Who can more adequately assure the child’s access to friends and peers?
- Who can more supervise the child’s home responsibilities?
- Who takes responsibility for completion of school assignments?
- Who can assist in reducing the necessity for other agency involvement (juvenile court, FIA or protective services)?
- This factor may not be relevant for a very young child who has not established a home, community or school record.
- The judge will attempt the sensitive task of assessing, whether the child prefers to live with either of the parents. The older and more mature the child is the more weight the court will give to this factor. It is up to the judge to decide whether a child is of a sufficient age to state a preference. Courts have considered children as young as 8 old enough. The judge will interview the child in private rather than taking the child’s testimony in court. In the interview, the judge may not cover matters other than the child’s preference. Parents are cautioned to be careful about questioning a child about his/her preference since the child may feel “on the spot”, and will not want to feel guilty by hurting either of the parents.
- Who can best cooperate with the parenting time schedule?
- Does either parent criticize the other parent in front of the child?
- Have there been incidents of violence in the home by any party against any party?
- If so, have there been police reports, arrests, or convictions?
- Has there been a pattern of domestic violence, including physical and non-physical abuse, reported or not?
- Who can most likely address the special needs of the child?
- Has either parent threatened to kidnap the child?
- Has either parent failed to exercise parenting time, or failed to return the child?
- Are there other children, whether a part of the impending litigation or not, whose custody is relevant to the child’s best interests?
- Are there significant others or new spouses whose relationship with the child affects the child’s best interest? The court will want to view the entire home
- Is there an issue regarding separating two or more of the children?
4) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
6) The moral fitness of the parties involved.
7) The mental and physical health of the parties involved.
8) The home, school, and community record of the child.
9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
10) 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.
11) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
12) Any other factor considered by the court to be relevant to a particular child custody dispute.
It takes a skilled lawyer to navagate through these factors and present your case.
Contact Us today for a free consultation and evaluation of your case.