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Who your children will live with, and who will make decisions about their care—are the most emotional and traumatic part of most divorce cases. The Court considers two forms of custody: legal and physical. Who your children will live with, and who will make decisions about their care—are the most emotional and traumatic part of most divorce cases. The Court considers two forms of custody: legal and physical.
If the parties agree upon the issues of legal and physical custody, the Court generally adopts that agreement in the form of a stipulation (agreement of the parties) and order (official adoption by the Court of the agreement). If the parties can’t reach an agreement, Michigan law requires the judge to decide what is in the best interest of the child. After taking testimony and receiving evidence, the judge must make findings of fact on the record as to each of the 12 factors listed in the Child Custody Act.
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734-994-3000The process begins with conciliation at the Friend of the Court. This meeting takes place within 3–8 weeks of the filing of the complaint for divorce. The objective of conciliation is to have the parties reach a temporary agreement about custody, parenting time and child support. If the parties can’t reach an agreement, the conciliator makes a recommendation to the judge, which the Judge will adopt as an interim order.
The Court considers the testimony and evidence presented to reach a conclusion about whether each factor favors the mother, the father, or neither parent. For this reason, it’s important that you evaluate yourself and your spouse as impartially as possible to prepare yourself for the process that lies ahead. The worksheet below helps you do that.
These are some of the factors the Court may use to determine who would prevail with custody of the minor child. For each question, write “father”, “mother” or “equal.” For each statement, write a short explanation, including examples, witnesses or other tangible evidence and documents.
1. Love, affection and other emotional ties between the parties and the child.
Who gets the child’s breakfast/lunch/dinner?
Who is the child most bonded to?
Who does the child tell about their accomplishments?
Who does the child turn to with a problem?
Who can separate the children’s needs from their own? How would you describe your relationship with your children? How would you describe your spouses’ relationship with your children? What is the average number of hours each of you speaks with the children? What are the child’s favorite foods, TV programs, stories, friends, etc.? How has the child been affected by separation, and what do you do to try to fix the problem?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS? __
2. Capacity and disposition of the parties to give the children love, affection, and guidance and to continue the education and upbringing of the children in their religion or creed, if any.
Who feeds the child?
Who bathes and dresses the children, puts them to bed, etc.?
Who stays home from work when the children are sick?
Who takes responsibility for involvement in academic affairs, enrollment in programs, homework, conferences?
Who arranges for nursery school enrollment/religious education? ______How do you discipline the children?
___ How does the other parent discipline the children?
Does either parent have problems with verbal or physical abuse, substance abuse, or an arrest record?
Who can provide the children with access to extended family?
What activities do you do with the children, and how many times a week or hours? Describe a typical day.
How do you show your children love and affection?
How would you describe yourself and your spouse as a parent?
Do you know the names of children or friends your children plays with now and in the past year?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS?
3. Capacity and disposition of the parties to provide the children with food, clothing, medical care or other remedial care permitted under Michigan law in place of medical care, and other material needs.
Who buys the children’s clothes, toys, equipment?
Who takes the children to the doctor/dentist?
Who arranges for daycare or babysitters?
Does the child have any special physical or emotional special needs, and if so, who takes care of them?
Who has more certainty of future earnings?
Who has health insurance?
Who attends classes for professional improvement?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS? _
4. Length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
Describe the child’s current home situation, including how many rooms, how many people, how long has the child has lived there. Is the home clean and safe?
Describe the proposed home. Is it in the same geographical location? How will the move affect the children? Is it safe?
Which home will provide the children with the most love, affection, guidance, moral and spiritual training, and educational opportunities?
Do the children have friends and relatives who live nearby in either proposed location?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS?
5. Permanence, as a family unit, of the existing or proposed custodial home or homes.
In whose custody will the family unit not be split?
What is the child’s relationship to other siblings?
What is the child’s relationship with the parents?
How do you think the child perceives the family unit?
Which home is likely to be more permanent?
Has either spouse expressed the intention of moving from the area or the state?
Do you have immediate prospects of remarriage or a continuing relationship with a person who will be significant in the life of the children? If so, describe that person’s relationship with the children and how it might affect the custody decision.
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS? _
6. Moral fitness of the parties (this also applies to stepparents and significant others).
Extramarital affair(s) the children know about
Physical or sexual abuse of the children
Illegal or offensive behaviors
Poor driving record (excessive violations, DUIs, or reckless driving convictions)
Alcohol or drug problems—how severe? Has treatment been sought? Is there is a police record? Does anyone verbally abuse, ridicule or demean the children? Have the children been exposed to moral issues, and what is their response? What are each party’s strengths and weaknesses in discussing moral beliefs?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS? __
7. Mental and physical health of the parties.
Physical or mental health that significantly interferes with the ability to safeguard the children’s health and well-being
Age of parents compared to the age of the children— would the energies of the children overwhelm the parent?
What is the mental health history, marriage counseling, or hospitalizations of all parties?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS?
8. Home, school and community record of the children.
Who can more adequately plan and supervise the child’s home responsibilities appropriate to their age and circumstance?
Are juvenile or other agencies involved, and who can more adequately deal with them?
Where do the children attend school and what is its reputation?
How are the children doing academically and socially? What is their attitude toward school?
Has any of the above information changed since the divorce or separation became known to the children?
How do the parents participate in school and extracurricular activities, and with the child’s friends?
How is the daily routine organized at home: do the children have chores or responsibilities?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS?
9. Reasonable preference of the child, if the Court considers the child to be of sufficient age to express a preference.
Do you feel the children have a preference for one parent over another?
How do you feel the children will react if a change of custody is granted?
Why does the other party want this change of custody?
Why do you oppose this change of custody?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS?
10. Willingness and ability of each of the parents to encourage a close, continuing parent child relationship between the children and the other parent.
Who can best cooperate with an appropriate visitation schedule with the other party?
Who is least likely to disparage the other parent in the presence of the children?
What is your proposed visitation schedule?
When and how do you talk about the other parent with your children and what do you say?
List the five best things about your spouse’s parenting abilities and his/her relationship with the children.
List the five worst things about your spouse’s parenting abilities and his/her relationship with the children.
List five things about your spouse that you admire as a person.
List your and your spouse’s strengths and weaknesses.
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS?
11. Domestic violence, regardless of whether the violence was directed against the children or witnessed by the children.
Has Child Protective Services ever been involved?
Have there been any incidents of violence in the home by any party against any party? Has there been a pattern of violence, whether reported or not? Has there been a police record?
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS?
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12. Any other factor the Court considers relevant to this child custody dispute.
Threats of kidnapping
Failure to exercise visitation, failure to notify of changes, or failure to return the children
Excessive traveling
Failure to complete court reports
Occasional acts of adultery committed prior to separation
Occasional acts of adultery committed after separation
Ongoing affair that continues
Living with a member of the opposite sex without getting married
Occasional acts of homosexuality
Practicing homosexual or bisexual
Sexual promiscuity
Engages in “kinky” sex
Conviction of a serious crime
Gambling—occasional, moderate stakes or frequent, high stakes
Regular church attendance
Spouse’s moral values
Objectionable business practices
Objectionable social practices
Marital misbehavior such as verbal abuse, belittling spouse in public
Personality traits (volatile, stable, etc.)
Mental disease such as bipolar disorder or schizophrenia not controlled by medication/ counseling
Spouse is neurotic
Serious physical disease (heart condition, cancer, etc.)
Physical disability (blind, crippled, etc.)
Alcohol abuse
Drug abuse (prescription drugs)
Drug abuse (illegal drugs)
Intelligence
Educational attainment
Status in community
Are any other children (whether a part of this litigation or not) whose custody is relevant to the children’s best interest? (Half brother or sister, stepbrother or sister)
WHICH PARTY DO YOU THINK THIS FACTOR FAVORS?
I really appreciate all your efforts throughout the mediation. I truly felt that you had [my child’s] best interests in mind, which was incredibly reassuring. I still dont know how you kept going yesterday without eating all day! I know that I was fuzzy by late afternoon! Although I’m not…
"That was a lot of time and effort to dedicate to helping this family. Thank you soo soo much for working with us and resolving this case!!" "I second that wholeheartedly. You had what felt like an impossible task and did an amazing job pulling everyone together. I cannot tell…
Thank you for all your help today. You handled the other attorney extremely well.
As a mother of three young toddlers and a business owner, I cannot say enough about Lori’s expertise, honest and blunt guidance, as well as prompt responding! Her staff has performed above my expectations for kindness and promptness. My case was not easy. There were substantial marital assets. Lori was…
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