Heisler Law OfficeNo. A court will not change custody from one parent to another solely based on the child’s preference. The child’s preference is only of many factors that the court will consider when one parent files for a change of custody. Depending on the child’s age and maturity level the court may indeed question the child as to her preference; nevertheless, the child’s preference is not the determining factor when a court is faced with a change of custody motion.
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What are the parenting time factors?
For decisions regarding parenting time, the court may also consider the following factors when determining the frequency, duration, and type of parenting time to be granted:
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
(h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody.
(i) Any other relevant factors.
What are the best interest factors?
A court must consider the best interest of the child when making determinations regarding custody and parenting time. The best interest factors are 12 factors outlined in MCL 722.23.
A. The love, affection and other emotional ties existing between the parties
involved and the child.
B. The capacity and disposition of the parties involved to give the child love,
affection and guidance and the continuation of the educating and raising of
the child in its religion or creed, if any.
C. The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care and other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material
needs.
D. The length of time the child has lived in a stable satisfactory environment
and the desirability of maintaining continuity.
E. The permanence, as a family unit, of the existing or proposed custodial home
or homes.
F. The moral fitness of the parties involved.
G. The mental and physical health of the parties involved.
H. The home, school and community record of the child.
I. The reasonable preference of the child, if the court deems the child to be of
sufficient age to express preference.
J. The willingness and ability of each of the parents to facilitate and encourage a
close and continuing parent-child relationship between the child and the other
parent.
K. Domestic violence, regardless of whether the violence was directed against,
or witnessed, by the child.
L. Any other factor considered by the court to be of relevance to a particular
child custody dispute.
Modification of Child Support
Child support orders can be modified by right if (1) it has been three years since the court has reviewed the child support in the case or (2) if the petitioning party can prove a “change in circumstance” since the last child support order.
The court itself will decide what constitutes a modification in order to conduct a review for child support purposes. Change of circumstances can include: an increase or decrease of income, retirement, illness, increased needs of the children, additional daycare expenses, and new children are born to either party. Other instances can also meet the change of circumstance threshold to invoke a child support review.
A person petitioning for a Modification of Child Support should also understand that by petitioning the court to review child support, the actual amount of child support could increase to the Payer as easily as it can decrease. When the court reviews a motion to modify child support, the court reviews the income of both of the parties as well as the needs of the child. Therefore depending on the facts of the case when a review ensues, the result could be detrimental to the petitioning party who assumed that child support would indeed decrease.
How do I know if I am able to claim the Child Tax Exemption?
Generally, a parent who has custody for the greater portion of the year may claim the child as a dependent, providing that both parents together provided more than 50% of the child’s support.
Your divorce decree, Judgment of Divorce, will likely outline which party is able to claim the child for tax purposes. If the Judgment of Divorce does not mention the child tax exemption, then look to the Uniform Child Support Order in your case. The amount of child support considers which party is able to claim the child for tax purposes and creates an adjustment for the other parent who does not receive this credit.
If a divorce is currently pending, then the Uniform Child Support Order would be the controlling document to outline the exemption credit.
My Ex-Wife said I can claim the child tax exemption this year, but your Judgment of Divorce says she is able to claim the child for tax purposes. Can we make this agreement outside the Judgment of Divorce?
You should always strive to follow your Judgment of Divorce. In fact, if you do not follow the Judgment of divorce you could have repercussions. Nevertheless, the custodial parent, or in this case the Ex-Wife can relinquish the child tax exemption if she chooses. The IRS has a particular form for this relinquishment, Form 8332. The child tax exemption can be relinquished for one year or for a number of years.
I am ordered to pay child support by the Friend of the Court, can I pay my support directly to the other party?
This is not the recommended way in which to pay support. Once a support order has been established, your child support should be taken directly from your paycheck. If you are unemployed, then you are responsible for paying child support on your own. Regardless of how you pay support, once a support order has been established, by the court, you should make payments to either the Friend of the Court in your county or the Michigan Disbursement Unit (depending on the preference of your Friend of the Court). The Friend of the Court in your county keeps track of all support that has been paid by you to the other party, if you pay the other party directly the court will have no knowledge of the payment. If the court has no knowledge of the payment, they will be unable to give you credit for the payments you have made. If you pay the court directly the court can keep track of your current obligation, any arrearages owed, and future payments in an accurate manner.
I was just ordered to pay child support and I received a letter stating I am already in arrears, what does this mean?
An arrearage for child support purposes means that there is an outstanding monthly child support obligation that has not been paid. Unfortunately if you have recently been ordered to pay child support through the Friend of the Court, then you may likely be in arrears. After a child support order has been established, it then takes time for the child support order to be processed. After the Friend of the Court processes the child support order, the Friend of the Court then sends the income withholding to the Michigan Disbursement Unit; the Michigan Disbursement Unit then processes the order and forwards that Order to the Payer’s employer. After the Order has been processed by all of these agencies, then child support is automatically deducted from a Payer’s check.
The time is takes for all of these agencies to process this single Order can take weeks. Therefore, by the time child support is directly taken out of your pay, you are already a month in arrears. Most courts understand that Payer’s are likely in arrears initially.
BAH (Basic Allowance for Housing) and Family Support
BAH or basic allowance for housing is a housing allowance provided to a solider based on geographic duty location, pay grade, and dependency status.
Army Regulation 608-99 is the Army’s regulation regarding family support, child custody, and paternity. In regards to this topic, AR 608-99 obligates a soldier or servicemember to financially support his/her family.
If No Court Order Exists:
In the absence of an oral or written financial support agreement, a family of a servicemember is entitled to a pro rate share of the servicemember’s BAH –II WITH.
The formula is:
1 X Applicable BAH-II Rate
Total Number of Family Members Supported
This formula does have exceptions and should be used accordingly.
If a Court Order Exists:
If a court Order or another form of a written agreement exists then this written agreement controls the soldier’s financial support obligation. The solider is not required to provide his/her family the support ordered under the written agreement and the pro rata share.
How is Child Support Calculated?
Child Support takes numerous factors into consideration including: the income of the parties’, the needs of the child(ren), the time each parent spends with the child(ren), whether or not the child is in daycare, who pays health insurance for the child(ren), and a array of other factors.
Child Support is calculated using a pre-established formula; it is usually computed by your local Friend of the Court or often by an attorney with working knowledge of the interplay between the child support factors and the party’s unique circumstance.
Below are some typical questions parties have in regards to child support.
Does the child support formula take into consideration that I have other children?
Yes, the child support formula takes into consideration whether or not you have additional children, biological or adopted, living in your home or for which you pay support.
The formula does not take into consideration whether or not you have step-children living in your home.
Does the child support formula take into consideration who will be claiming the child(ren) for tax purposes?
Yes, the child support formula takes into consideration who is able to claim the child(ren) for tax purposes. Usually the party with sole physical custody of the child(ren) is the person who claims the children for tax purposes.
Should I care if the child support formula has some inaccuracies, for example if it says I only have 84 overnights with my child(ren) but I actually spend more time with him/them?
Yes, you should scrutinize any child support recommendation you receive. If you allow a small inaccuracy to become an order of the court without correcting it, this small inaccuracy could have a larger impact in the future.
My soon to be ex-spouse and I have agreed on child support, do we have to go through the Friend of the Court?
Not necessarily. There is an “opt out” process which may allow some parents to negate the need for Friend of the Court services. In these particular cases, child support is not automatically deducted from the Payer’s check. Instead, the Payer pays child support, directly to the Payee, by way of cash, check, or automatic transfer. This process, as described, negates the Friend of the Court service charge of $3.50 per month.
Before deciding to “opt out” of the Friend of the Court process, there are various considerations that must be addressed.
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