What are some of the pros and cons of getting a custody order?
Some people decide not to get a custody order because they don’t want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent. However, getting a custody order can give you the legal right to make decisions about your child and the right to have your child live with you.
If you decide not to get a custody order, then you and the other parent likely have equal rights to making decisions and living arrangements. The exception to this is when paternity has not been legally established.
There are multiple ways that paternity (legal fatherhood) can be established in Michigan:
- If parents were married to each other when the child was conceived or born, paternity is automatically established for the husband.
- If parents were not married to each other when the child was conceived or born, then they need to do something to establish paternity. This can be done in two ways:
- involuntarily, which is when one of the parents asks the local family court to establish paternity, usually through DNA testing; or
- voluntarily, which is when both parents agree as to who the father of the child is. This can be done through filling out an affidavit of parentage:
- at the hospital;
- at the Michigan Department of Health and Human Services;
- at the local county Registrar’s Office; or
What are the usual steps when filing for custody?
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, although custody laws vary by state, the process usually looks similar to this:
1. File for custody. Depending on the state, you may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent who is not filing for divorce, you can file for custody on its own.
- If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
2. Prepare for the custody process
The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? (“Best interest of the child” standard) for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
3. Prepare for trial
There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:
- communications between the parents can only be in writing;
- all communications can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.
4. Options if you lose the custody case
There could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.
A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state.
You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.
How will a judge make a decision about custody? (“Best interest of the child” standard)
The “best interest of the child” standard is a legal standard that most states use to decide who should be in charge of a child. Each state has its own factors to be considered. In Michigan, when determining what is in the best interest of the child, the judge will look at:
- the love, affection, and other emotional ties existing between the parties involved and the child;
- the ability and willingness of the parties involved to:
- give the child love, affection, and guidance;
- continue the education and raising of the child in her or his religion, if any;
- provide the child with food, clothing, medical care, and other material needs,
- encourage a close and continuing relationship between the child and the other parent - however, any reasonable action taken by a parent to protect himself/herself or his/her child from sexual assault or domestic violence by the child’s other parent cannot be looked upon negatively;
- the length of time the child has lived in a stable environment and the desire to keep the situation as is;
- the permanence, as a family unit, of the existing or proposed custodial home;
- the moral character of all individuals involved;
- the mental and physical health of all individuals involved;
- the home, school and community record of the child;
- the child’s preference for who s/he wants to live with, if the judge believes the child is old enough to give his/her preference;
- acts of domestic violence (Note: It doesn’t matter if the violence was directed at, or witnessed by, the child or not); and
- any other factor that a judge considers important.1
If at any time the judge believes your child’s best interests are not being adequately represented, s/he may appoint a lawyer-guardian ad litem to represent him/her.2
1 See MCL § 722.23
2 MCL § 722.24(2)
How will a judge make a decision about parenting time?
To decide whether or not to order parenting time and what sort of schedule would be best, the judge has to look for what’s in the best interest of the child. You can read the factors the judge will consider in How will a judge make a decision about custody? (“Best interest of the child” standard).
To establish how often (frequency), the length (duration), and they type of parenting time, the judge may consider:
- any special circumstances or needs of your child;
- if your child is less than six months of age and nursing or less than one year of age and receiving a considerable amount of his/her nutrition from nursing;
- if there is a reasonable possibility of your child being abused or neglected during parenting time;
- if there is a reasonable possibility that you will be abused during parenting time;
- how inconvenient or burdensome it would be to make your child travel for parenting time;
- how reasonable it is that either parent will be able to use (exercise) his/her parenting time based on the court order;
- if either parent has frequently failed to use or provide (exercise) reasonable parenting time;
- if either parent has threatened or has actually taken the child with the intent of keeping him/her from the other parent or from someone else who has legal custody except if this was a temporary residence in a domestic violence shelter; or
- any other relevant factors.1
1 MCL § 722.27a(7)
How will the judge decide whether to grant joint custody?
Aside from the factors included in How will a judge make a decision about custody? (“Best interest of the child” standard), the judge will also consider if the parents will be able to cooperate and generally agree concerning important decisions affecting the wellbeing of your child.1 If the parents agree on joint custody, the judge will award it unless s/he determines that it wouldn’t be in the best interest of the child.2
1 MCL § 722.26a(1)
2 MCL § 722.26a(2)
Can a parent who committed violence get custody or visitation?
The judge will take into consideration any act of domestic violence committed by either parent, regardless of whether the violence was directed against, or witnessed by, the child.1 It is possible, however, that a parent who has committed violence will get custody or visitation.
It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues. For information on how to find a lawyer, see our MI Finding a Lawyer page.
1 See MCL § 722.23(k)
Can a parent who was convicted of sexual assault get custody or parenting time?
Custody and parenting time should not be ordered if the other parent is convicted of committing any of the following crimes against your child:
- criminal sexual conduct in the first, second, third, or fourth degree; or
- assault with intent to commit criminal sexual conduct.
The law also protects your child’s siblings from custody and parenting time with the convicted abuser. However, the law does allow the judge to consider granting parenting time with the victimized child or his/her siblings if both of the parents and the victimized child, depending on his/her age, agree to it.1
In addition, if your child was conceived as a result of the abuser committing any of the above-mentioned acts against you, the offender cannot get custody or parenting time. Even if the abuser wasn’t convicted of one of those crimes, custody and parenting time will still be denied if you are able to present the judge with clear and convincing evidence that the crimes was committed against you.
However, this does not apply if:
- the conviction was based on you being a minor between 13 and 16 years of age at the time; or
- after the conviction or after you presented evidence to the judge about the sexual abuse in your custody case, you and the other parent lived together and took care of the child together.2
1 MCL § 722.27a(6), MCL § 722.25(6)
2 MCL § 722.27a(4), MCL § 722.25(2)
Should I start a court case to ask for supervised parenting time?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that his/her parenting time with your child be supervised. If you are already in court because the abuser filed for custody or parenting time, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised parenting time. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get supervised parenting time and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised parenting time is only a temporary measure. Although the exact parenting time order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits. Another common alternative is for the parenting time to be supervised by a relative for a certain amount of time. If there are no obvious problems during this visits, they may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to MI Finding a Lawyer to seek out legal advice.
Can a grandparent file for grandparenting time?
Michigan law allows for a grandparent to file for “grandparenting time” under one of the following circumstances:
- the child’s parents are in the middle of a divorce, separate maintenance, or annulment process in court;
- the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;
- the grandparent’s son/daughter, who was the child’s parent, died;
- paternity has been established but the child’s parents have never been married and they are not living in the same household;
- legal custody has been given to someone who is not the child’s parent but an adoption process hasn’t been completed;
- the child lives in a home that’s not the home of his/her parents; or
- in the year before filing for grandparenting time, the child lived with the grandparent even if s/he didn’t have custody of the child under a court order.1
However, if both parents of the child are considered to be fit and they both object to grandparenting time, the grandparent’s petition will be dismissed.2
1 MCL § 722.27b(1)
2 MCL § 722.27b(5)