What types of custody exist?

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There are two types of custody in Michigan, legal custody and physical custody. Interestingly the Legislature had not made a distinction between legal and physical custody; nevertheless, the concepts are different.

Legal custody concerns the authority to make “important decisions affecting the welfare of a child.” MCL 722.26(a)(7)(b). Those important decisions include religion, medical decisions, education, and other matters affecting the welfare of the child

In most situations the court encourages the parents of a child to share in legal custody, commonly known as “joint legal custody.” Courts recognize the importance of both parents having access to a child’s medical and school records, advising each other promptly in situations of emergencies, and to laying a common foundation for the rules and regulations of a child.

Physical custody on the other hand encompasses a parent’s authority to make the day-to-day, routine decisions for the child. Often, the parent who has the child for the greater portion of the year has “sole physical custody” of the child.

How do I object to a Conciliator’s Recommendation?

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If you received an Order from the court titled “Conciliator’s Recommendation” or “Interim Order” or something similar, you have the opportunity to object to such recommendation/ interim order before it becomes the final order of the court. Read this recommendation carefully. It will outline the deadline for which you must make and objection. If you do not file an objection within this time period, the recommendation will be signed by the Judge and become a final order of the court. In most counties, you will have 21 days from the date of service to make an objection. The “date of service” does not mean 21 days from the date you received the document; it means 21 days from the date the proof of service was signed (i.e. date the document was placed in the mail). If you have any questions about the time period for which to file an objection, you should contact and attorney or your caseworker.

Custody and Visitation in the wake of the Michigan Medical Marihuana Act

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In December 2008, Michigan enacted the Michigan Medical Marihuana Act which protects the growing and using of marijuana for certain medicinal purposes. The Michigan Department of Licensing and Regulatory Affairs reports that: 214,209 original and renewal applications were received since April 6, 2009, 131,308 patient registrations were in fact issued; and 22,123 applications had been denied[1]. It’s evident that some of these applicants are parents of minor children.

Only time will tell how the Medical Marihuana Act, MCL 333.26421-26430, will affect custody and parenting time as years progress. Currently, the law states:

A personal shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated. MCL 333.26424(c).

As more and more cases are evolving in the lower courts over the use of medical marijuana, the phrases creates a unreasonable danger and clearly articulated and substantiated will inevitably be defined. MCL 333.2624(c) will also have a dynamic interplay with MCL 722.23 and MCL 722.27(6).

[1] http://www.michigan.gov/lara/0,1607,7-154-27417_51869—,00.html

I received a notice to attend a conciliation conference, what does this mean?

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This notice was likely sent to you by the Friend of the Court. A conciliation conference is an alternative dispute resolution process. Parties usually attend conciliation conferences for issues relating to custody, parenting time, and child support. A Friend of the Court employee, who may or may not be an attorney, will hold a conference with both parties in attempt to reach a resolution in the case. If there is an agreement between the parties, the Friend of the Court employee will reduce that agreement to writing. If there is no such agreement, the employee will listen to each party’s prospective and make a written recommendation.

You should be well prepared for this hearing prior to attending it.

My child wants to live with her Father, can he change custody based on her preference?

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No. 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.

What are the parenting time factors?

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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?

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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.