Michigan Divorce Education Series
Michigan child custody, child support and parenting time: This video Webinar is a comprehensive explanation of Michigan law and strategy covering child custody, child support, and parenting time. Key learnings and strategies are discussed. I am hopeful you find it both empowering and educational. A summary of the topics covered is provided below. (run time – approx. 15 minutes)
Definitions
What is Custody? “Custody” identifies the parent charged with “control” over the day to day decisions regarding raising a child.
What is Parenting Time? “Parenting time” describes the frequency a parent spends with a child.
Custody and Parenting Time are similar, however the law is different.
Types of Custody
Legal Custody – major or ‘legal’ decisions concerning the child. Legal custody is almost always joint, where both parties share equally in major decisions concerning the child.
Physical Custody – where the child spends the majority of time. This type of custody is not used very often any more.
Custody Determination (Custody Fight)
Step 1. Consider the established custodial environment:
- where a parent provides care, discipline, love and guidance
- who the child naturally looks to for guidance, discipline, and the regular necessities of life.
- Over an appreciable period of time
An established custodial environment is often found with both parents.
The established custodial environment sets the evidentiary threshold.
Step 2. Consider the best interests of the child:
- 12 factors to be considered, evaluated and determined by the court.
- Not every factor is given equal weight, and one factor may sway the court.
- Factors include:
- The love, affection and other emotional ties existing between the parties involved and the child.
- The capacity and disposition of the parties 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.
- The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care
- The length of time the child has lived in a stable, satisfactory environment
- The permanence, as a family unit, of the existing or proposed custodial homes.
- The moral fitness of the parties
- The mental and physical health of the parties
- The home, school, and community record of the child;
- The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference;
- 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;
- Domestic violence, regardless of whether the violence was directed against or witnessed by the child;
- Any other factor considered by the court to be relevant to a particular child custody dispute.
Child Support
What is it?
- Money for the support of the child
- Medical, dental, health care expenses
- Child care expenses
- Confinement expenses
What is it for?
Care and maintenance of the minor child
How long does it last?
There is no legal obligation for post-majority support beyond 19 ½.
How much will I get? Or how much will I have to pay?
Court’s utilize the Michigan Child Support Formula Manuel to calculate child support. The primary factors effecting child support are the number of overnights the children spend with each parent and the income of the parties.
We would be happy to run “guidelines” for you.
Frequently Asked Questions
- If Child Support payments are not made, can parenting time be denied? Michigan law provides that a child shall have a right to visit with his/her parents unless it is shown on the record that there is clear and convincing evidence that it would endanger the minor child. Parenting time cannot be denied if child support payments are not made. Michigan does provide penalties for not paying child support, however, the penalties cannot include termination or suspension of parenting time.
- If I have joint physical custody do I still have to pay child support? A child support award is calculated in cases with joint custody. Joint physical custody does not have to mean equal parenting time. Child support is primarily based on the number of overnights the child spends with a parent and the income of the parties.
- What if we have equal parenting time (visitation) is support ordered? Child support will still be ordered unless the parties have the same income.
- At what age can a child decide who to live with? The legal answer is at the age of 18. Factor i of the the Best interest factors provides that a court can take the reasonable preference of a child into consideration, if the court considers the child to be of sufficient age to express preference. However, this factor does not give the power to the child to choose who to live with. Notwithstanding, a child’s preference can be highly relevant.
- How do I modify a custody order? A custody order can be modified by filing a motion with the court. You must first provide a good basis for modification. Michigan law requires a material change in circumstances since the last custody order. Provided there is a material change in circumstances, the court will schedule a hearing on the best interest factors.
- I have joint legal custody and we cannot agree on choice of school. How does the court decide? Pursuant to MCL 722.26a(7)(b) as a joint legal custodian, the parents share decision-making authority as to the important decisions affecting the welfare of the child. When the parents cannot agree on an important decision, such as a change of the child’s school, the court is responsible for resolving the issue in the best interests of the child. Lombardo v Lombardo, 202 Mich App 151, 159; 507 NW2d 788 (1993); see also MCL 722.25(1).
Michigan custody and child support case law and statutes
MCL section 722.21:
Section 11 of the Child Custody Act of 1979
Statutory parental presumption
MCL 722.25(1): Custody battle between a parent and a third party gives priority to the parental presumption.
Heltzel v. Heltzel, 248 Mich App 1 (2001) The parental presumption applies and prevails regardless of whether the parent is a fit parent.
Uniform child custody Jurisdiction and Enforcement Act
(UCCJEA): governs interstate custody disputes
Established Custodial Environment
722.27(1)(c): A court cannot enter a new custody order or amend an existing order without first determining if there is an established custodial environment.
Ireland v Smith, 214 Mich App 235 (1995) In a Michigan custody dispute an established custodial environment is a preliminary and essential determination.
MCL 722.27: If an established custodial environment exists, a change can be made only on clear and convincing evidence that the change is in the best interest of the child.
Blaskowski v Blaskowski, 115 Mich App 1 (1982): The standard under which custody questions are decided is “the best interest of the child”. MCL section 722.27(a) Defines Established custodial environment.
Pierron v Pierron, 486 Mich 81 (2010): If no established custodial environment exists, custody may be decided upon showing by a preponderance of the evidence.
Jack v Jack, 239 Mich App 668 (2000): A temporary custody order does not create an established custodial environment.
Modification of Custody
Rossow v Aranda, Court must find that the petitioner has carried the initial burden of establishing that there is proper cause or a change in circumstances to modify an existing Michigan child custody order.
Meyer v Meyer, 153 Mich App 419 (1986), a change in a custody order is appropriate at the time the court determines that a modification is in the child’s best interest.
Amount of child support
Calley v Calley, 197 Mich App 380 (1992) There is a rebuttable presumption in favor of setting support at the level recommended by the Michigan Child Support Formula.
Nelis v Nelis, 211 Mich App 226 (1995) A Michigan court must order child support in an amount determined by applying the Michigan child support formula manual or may enter a child support order that deviates from the formula if the application of the formula would be unjust or unfair.
Income
Good v Armstrong, 218 Mich App 1 (1996) In determining the level of child support, the court is not limited to the payer’s income. The court may also consider the payer’s financial situation.
Voluntary reduction of income
ff v Rohloff, 161 Mich App 766 (1987) When a party voluntarily reduces or eliminates income and the court concludes that the party has the ability to earn an income, the court can order Michigan child support based on the unexercised ability to earn income.
Olson v Olson, 189 Mich App 620 (1991) A court is not limited to a parent’s actual income in setting Michigan child support payments and may consider an unexercised ability to earn income.
Child support modification
Good v Armstrong, 218 Mich App 1 (1996) Modification is within the sound discretion of the trial court upon showing of a change in circumstances justifying Michigan child support modification.
For more information visit: https://www.thedivorceguy.com/kids-custody-and-support/
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By: Daniel Findling
The Divorce Guy, Michigan Divorce Attorneys and Specialists
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