Child Custody in Michigan - Initial Determination

How is Child Custody Determined in Michigan?

The judge will award custody to that parent based on what the court believes is in the “best interests of the child,” as defined in the Michigan Child Custody Act.   

First, the judge must decide whether the child has an established custodial environment with one or both parents.  A child has an established custodial environment if over time the child naturally looks to the parent in that environment for guidance, discipline, necessities and parental comfort.  If the child has an established custodial environment with one parent, the judge cannot change it unless there is “clear and convincing” evidence that it is in the best interests of the child.

Second, the judge must consider and evaluate the 12 best interest factors, which are listed below.

What does the court consider in determining child custody?

The judge will listen to testimony and evidence from the parties, family, teachers, expert witnesses, and others. Tangible evidence will also be examined such as school records and medical reports.

What are the criteria that the Court uses in determining custody?

As the judge listens to the testimony and reviews the evidence, he or she will compare the two parents based on the following list of 12 factors in the Child Custody Act of Michigan. The court in effect considers which parent outweighs the other in each area and then evaluates the parents overall in order to determine in whose custody will be in the best interests of the child.  

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 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.

4) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

      • 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.

5) The permanence, as a family unit, of the existing or proposed custodial home or homes.

      • 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.

6) The moral fitness of the parties involved.

      • 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.

7) The mental and physical health of the parties involved.

      • 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.

8) The home, school, and community record of the child.

      • 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.

9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

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.

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.

      • Who can best cooperate with the parenting time schedule?
      • Does either parent criticize the other parent in front of the child?

11) Domestic violence, regardless of whether the violence was directed against  or witnessed by 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?

12) Any other factor considered by the court to be relevant to a particular child custody dispute.

      • 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?

To locate free or low cost legal assistance:

To locate free or low cost legal assistance:

  • Visit the home page and search for local assistance by entering your zip code in the box marked “Find a lawyer, organization or related service to help you with your problem.” or

  • Look under "attorneys" in the yellow pages to find your local legal aid office, or

  • Contact the Michigan State Bar Lawyer Referral Service at (800) 968- 0738. 

  • Persons age 60 or older, regardless of their income, may be able to receive free advice from the Legal Hotline for Michigan Seniors by calling (800) 347-5297.

This article appears courtesy of the Legal Assistance Center of Grand Rapids, Michigan.

It was prepared by Norman K. Kravitz, and the Legal Assistance Center (LAC) of Grand Rapids, Michigan, an affiliate of the Grand Rapids Bar Association. The basis for most of the above sample questions that a judge may want answered in terms of assessing parents under the Child Custody Act is a document submitted by the Hon. John N. Kirkendall, Washtenaw County Trial Court, found on pages 3-39 to 3-46 of the Michigan Family Law Bench book published by ICLE.