Joint Custody in Michigan

Just because you and your former spouse or partner aren’t together anymore doesn’t mean they are a bad parent. Many children in separated families enjoy relationships with two healthy parents through some form of joint custody arrangement. Find out how joint custody in Michigan works, and when it is or isn’t a good idea.

What is Joint Custody?

The Michigan Child Custody Act sets the rules for family court judges’ decisions around custody and parenting time. Custody involves two separate issues:

• Who will make decisions about the child’s care and upbringing
• Where the child will spend their time

While the statute doesn’t make a distinction between the two, many lawyers and family judges call this “legal and physical custody”. Either parent can ask the court to consider a joint custody arrangement. In fact, most families’ custody orders include some joint provisions. What the specific terms look like depends on the family’s circumstances and the best interests of the children.

Joint Legal Custody

Joint legal custody means that both parents will share in making the big decisions about a child’s care and wellbeing. This includes notifying the other parent when emergencies or illnesses happen, and discussing any significant changes before making them. Issues often arise in joint legal custody situations when one parent chooses to make changes first and then discuss them with the other parent after the fact.

What Are Joint Legal Custody Decisions?

This isn’t a license to fight over details like bedtimes or ice cream. The parent who is exercising parenting time with the  children has the authority to make day-to-day decisions about their care during that time, including who will provide child care. However, shared legal custody does mean parents must discuss issues related to the children’s:

• Medical treatment (i.e. braces, glasses, allergy testing, mental health therapy, vaccines)
• Educational choices (i.e. enrollment, extracurricular activities, tutoring, special education)
• Religious upbringing (i.e. baptism, catechism, shule, bar/bat mitzvah, private religious school)

If the parents cannot agree on a joint legal custody issue, either parent can ask the court to resolve the dispute by filing a motion. The most common of these are motions to change schools. Courts also hear motions about vaccines, psychological therapy, and special education issues regularly.

Joint Physical Custody

Joint physical custody means that the child will spend significant time with both parents. Even if one parent is awarded “sole” or primary physical custody, the other parent will still be awarded parenting time except in rare circumstances. Joint physical custody goes beyond that. It divides up the year between the child’s two parents based on factors like:

• Where the child will go to school
• How far apart the parents live
• Who can provide after school care and homework assistance

Technically, physical custody doesn’t actually exist in the Child Custody Act. Some family lawyers choose not to designate physical custody in their consent custody orders at all. Instead, they simply detail the division of parenting time. However, whether your custody agreement has a physical custody award or not, significantly modifying the parenting time schedule will still involve a motion to change custody.

What Do Joint Custody Schedules Look Like?

If you and your co-parent agree to its terms, a joint custody parenting time schedule can be as flexible, and as customized as you need it to be. Sometimes a custody order will simply say parenting time will be “divided 50/50 as agreed to by the parties.” However, these vague custody orders can create problems later on.

Even if you anticipate being flexible and working with your co-parent to adjust according to your child’s needs, it is still a good idea to have a consistent schedule in place you can fall back on in case of disagreements. Some common joint physical custody schedules are:

• Week on/week off alternating at a set date and time each week (this type of schedule is less likely when young children are involved)
• One parent exercising mostly weekdays with the other parent exercising alternating weekends, extended summers, and perhaps a weeknight for dinner
• Split schedules giving both parents some uninterrupted weekends and time during the week

If you are negotiating a shared custody agreement, it is also important to look at how you will deal with holidays and vacations. Most Michigan counties’ Friend of the Court offices have default language for holidays that they will fall back on. However, these schedules make assumptions about which holidays are important. If you are a member of a religious minority, or have regular family reunions or gatherings outside of traditional holiday periods, you should include that language in your shared custody order.

When is Joint Custody a Bad Idea?

Joint custody, especially joint legal custody, is somewhat the norm in most Michigan family courts. If one party requests joint custody it will often be granted unless the other party can show it is not in the best interests of the child. If joint custody isn’t the right choice, you and your attorney will need to use the best interest factors to demonstrate the risk of giving your ex-spouse or former partner custody. This could include:

• Where one parent has been historically absent or uninvolved in the child’s upbringing
• When a child is less than 6 months and breastfeeding or less than 1 year and receiving substantial nutrition through nursing and should not be separated from its mother for extended periods
• If the child has a disability that is aggravated by schedule disruptions
• Where one parent does not have stable housing suitable for the child
• If one parent has a mental illness that interferes with their ability to make sound decisions
• When one parent has a physical disability that prevents them from taking care of the child that cannot be addressed with appropriate accommodations (i.e. the aid of responsible adult)
• Where the parties have a history of problems agreeing on child-related decisions (this often requires several motions to enforce or resolve joint legal custody issues before the judge will consider sole legal custody)
• When there is a history of domestic violence between the parties

Custody decisions should be made on a case-by-case basis, and not by falling back on default assumptions. Our Ann Arbor family law attorneys can help you consider your options and craft a custody arrangement that reflects your needs and your child’s best interests. Click here to schedule a consultation with one of our experienced attorneys.