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Changing Custody

HOW INITIAL CUSTODY WORKS IN MICHIGAN

 

Custody issues can present themselves in both contested and uncontested divorces – or when there is no marriage at all. It is imperative that a parent going through any custody issues contact an aggressive and competent law firm, such as The Mitten Law Firm, right away.​

There are 2 kinds of custody: 1:Physical  Custody, 2: Legal Custody. Physical custody allows a parent to make the everyday decisions for the child/children and determines the primary residence. Legal custody determines who is allowed to make long term decisions for the child/children, such as medical decisions

It is most common for parents to share in both legal and physical custody; however, this is not always the case.

​In Michigan, the custody decision must be based on the best interests of the child if the parents are not able to agree on custody.  When the court is determining the best interests of the child, they will use a statutory 12 factor test. These 12 factors are weighed proportional and will help the court determine the best interests of the child.

The 12 factor test that is used looks at:

  1. ​ The affection, love, and emotional ties between the parents and child.
  2. The capacity of the parties to provide love, affection, guidance, and religion (if applicable) to the child.
  3. The capacity of the parties to provide food, medical care, and other basic necessities to the child.
  4. The length of time that the child has been in a stable environment and  desirability in maintaining continuity.
  5. The permanence, as a family unit, of the existing or proposed marital home(s).
  6. The moral fitness of the parties to parent.
  7. The mental and physical health of the parties.
  8. The home, school, and community record of the child.
  9. The preference of the child if they are of sufficient age to have a reasonable opinion.
  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.
  11. Whether or not domestic violence has been an issue, regardless of whether the violence was against or in the presence of the child.
  12. Any other factors deemed relevant by the court.
    ​

All the the above factors will be taken into consideration when the court is determining the custody arrangement of the child.

HOW TO CHANGE CUSTODY

Changing custody is something that can be done after a custody agreement or order is in place. It can often be difficult to change a custody order, as the minimum threshold for change is difficult to meet.

In order to have a chance at changing custody, the parent seeking the change must show a significant change in circumstances or show a proper cause for change. A significant change constitutes of a change that was not foreseeable or anticipated when the current custody order was set in place. A few examples are shown below:

NON-SIGNIFICANT CHANGE
  • Change in job or income
  • Child’s wishes to change custody
SIGNIFICANT CHANGE
  • Onset of substance abuse by other party
  • Abuse or neglect of the child
  • Parent is absent from the home

When it comes to changing custody, it is also important to know whether or not there is an established custodial environment. The importance of knowing this rests on the fact that the burden of proof needed to change custody also changes based on whether there is a an established custodial environment or not.

A custodial environment is established if over an appreciable amount of time the child naturally looks to the custodian in that environment for guidance, discipline, necessities, and parental comfort. Consideration will be given for the child’s age, the actual physical environment, and the permanence of the relationship.

If an established custodial environment is present, the party seeking change must show by clear and convincing evidence that the change is in the best interest of the child. If one is not present, the seeking party must only meet a preponderance of the evidence burden, which is a much lower threshold to meet.

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