Anytime children are involved in a court case, including a divorce or child custody complaint, it can be hard for parents to set aside their own desires and do what is best for their children. The Michigan Child Custody Act lays out 12 “best interest factors” that judges use to help them resolve custody disputes and focus the results on what is in the child's best interests. Here are those factors, and what you and your lawyer should think about when presenting your custody case to the judge.
When parents fight over custody of their children, it is easy to focus on their own needs and preferences, instead of what would actually be best for their children. Most Michigan families resolve their divorce or custody case outside of court through mediation or a negotiated settlement agreement. They may agree that one parent will be the primary custodian, or that a joint custody arrangement is best for the children. Sometimes, parents will even bring in a counselor or therapist to help them resolve these disputes in conjunction with their attorneys. However, sometimes a case will come down to a judge deciding what is in the best interests of the child or children. When that happens, judges and family law attorneys are guided by the Child Custody Act’s “best interest factors.” This list of 12 factors make sure that custody decisions are focused on the child’s needs, putting them at the heart of the matter.
In many families, children love both their parents, and are strongly bonded to each one. However, sometimes, you may need to show that one parent prioritized their lives over their children, or that a mental health condition, incident of domestic violence, or other circumstances have eroded that bond.
This factor focuses on the parents’ job as facilitator for their children’s growth and development. You and your attorney might show that you were the parent who always went to the children’s parent-teacher conferences, or that your spouse had refused to let the children go to their preferred church or religious group. Many disputes over public vs private schooling focus on this factor (as well as factor (h) below).
This factor often feels like it is a fight over who has the most money to pay for the children. However, Michigan courts are supposed to consider how child support will offset any differences in the parties’ income. Instead, you and your divorce lawyer should look at who took the children to doctors, whether one parent’s food routines cause weight issues or medical problems for the children, or if your spouse was disconnected from providing the children with school clothes or other practical needs. The focus should be on which of the two parents has the greater capacity and disposition to provide the children with material and medical needs as demonstrated by who historically provided these needs.
Whenever possible, Michigan family court judges will try to minimize the disruptions in a child’s life and favor an outcome that would maintain the most continuity for the child. In a divorce, this might mean that the parent awarded custody will also be given possession of the marital home. Where the parents already live separately, the judge will consider the children’s history living with each parent, and try to favor continuing that history, unless it is inappropriate or dangerous in some way. You may need to present evidence of unsafe living conditions, the use of controlled substances in the home (especially if they are accessible by the children), or the introduction of dangerous third parties into the children’s home environment.
This factor gets to both the physical aspects of each parent’s home, and the relationships with others in the household. Custody arguments here can focus on the introduction of new romantic partners, the child’s relationship with step-siblings or half-siblings, and frequent moves by one or both parents. If you had to move because of your separation, you and your attorney should be prepared to show why the move was necessary and how long you plan to stay where you are now along with a history of stability otherwise.
Factors (f) and (g) are often battlegrounds in high-conflict divorce cases. Spouses often try to raise their spouse’s affair or drinking habit as a reason why they should not get custody. However, the Child Custody Act’s consideration of moral fitness only applies to choices that affect a person’s ability to serve as a parent not as to who may be the morally superior adult. A history of drinking alone won’t be enough. However, if you can show that the other parent is regularly intoxicated during parenting time, you will have a stronger argument. Similarly, an affair does not directly affect your spouse’s ability to parent, but choosing to spend time with a new partner over the children could make an impact on your custody case.
If one parent has mental health challenges or a physical disability that affects their ability to parent, you and your attorney should be prepared to present medical documentation or even an expert witness to prove it. Michigan and federal law requires the Court to make reasonable accommodations for a person’s disability under the Americans with Disabilities Act. That means you won’t be able to simply testify that, for example, your spouse is depressed and doesn’t get out of bed for days on end. Instead, you should be prepared to show that either:
Here is where the factors focus in on the child’s circumstances. This factor can include behavioral problems at home, fights with siblings or friends, problems at school, or other evidence about how your divorce or separation has affected your child. This factor often requires proof in the form of progress reports or report cards from school. Teachers or a child’s therapist can also be called as witnesses to testify to the child’s progress or mental health.
Children as young as age 6 may be asked to express their preference in a custody dispute. Usually, children won’t be asked to testify in court. Instead, either the family court judge or a Friend of the Court investigator will interview each child privately to discuss their preferences and the reasons for them. The Friend of the Court recommendation or the judge’s opinion will simply state that the child’s preference was taken into account. As a parent, you should not coach your child on what to say during these interviews. Even if you are supporting your child’s opinion, if the investigator believes that the child was coached it could weigh against you as they consider the best interests of the child.
The higher the level of conflict in your custody case, the more likely this factor will play a role in your Michigan custody decision. Family court judges expect parents to maintain and promote their child’s relationship with their other parent (except in domestic violence or child abuse cases). However, in a high-conflict divorce there are often periods where one parent will cut off the child’s access to the other parent or deny parenting time.
In the most severe cases, terms like “parental alienation” come into play. While the science behind “parental alienation” is in question, there are undoubtedly times when one parent has stood in the way of their children’s relationship with the other parent. In those cases, you and your lawyer should be prepared to tell that story and explain how it relates to this factor.
Domestic violence cases involving children are some of the toughest, most heart-breaking custody disputes. Courts take it very seriously when one or both parents has a history of physical, verbal, or emotionally abusive behavior. As a survivor of domestic abuse, it can be difficult to tell your story to the judge. However, you should be prepared to lay out what the children knew, saw, or experienced, as well as your own experiences. This will help your judge understand the impact of your abuser’s behavior on you and your children and craft a custody and parenting time order that keeps everyone safe.
This factor gives you and your custody lawyer a chance to raise anything that is unique to your case. It is a broad category, but common “other factors” include:
However, there are some “other factors” the court will not consider, specifically:
The Michigan best interests factors can also come into play when one parent asks to modify an existing child custody order. This happens after the parent has proven there is a proper cause (good reason) to change the current arrangement or that a change of circumstances has occurred to warrant revisiting custody. Once that threshold has been met and the burden of proof determined, the judge will review the best interest factors again, looking at what has changed or what is causing a problem for the child. Work with your family law attorney to define your request to modify custody in terms of the best interests of your child. That will make it easier for a judge to say yes to your request.
Custody decisions are always made on a case-by-case basis, and depend on the best interests of the children involved. At NSSSB, our Ann Arbor family law attorneys help parents keep the focus on their kids and craft a legal argument that reflects your needs and your child’s best interests. Click here to schedule a consultation with one of our experienced attorneys.