What happened to physical custody in Michigan?
When I began practicing divorce law almost 20 years ago the phrase “physical custody” in Michigan had specific meaning. The phrase physical custody in Michigan identified which parent a child spent the majority of the time. The other parent had “parenting time’.
Things have changed. Now almost 20 years later, physical custody is becoming an extinct phrase in Michigan divorce and custody cases.
Which begs the question:
What happened to physical custody in Michigan?
The simple answer is not so simple. The legislatures use of the word “may” instead of a “shall” in the Child Custody Act of 1970 has led to the downfall of physical custody in Michigan.
Michigan divorce laws are created from a variety of sources including:
- Old English common law (which is still good law in Michigan);
- The legislature (which passes laws); and
- The Court’s (which interpret and sometimes make new laws).
When the Michigan legislature passed the Child Custody Act of 1970 (effective on April 1, 1971 and amended in 1990, and 1996) the term physical custody in Michigan was optional. The relevant provision of The Child Custody Act of 1970 (MCL 722.26a) provides:
(3) If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
The legislatures use of the word “may” provide for an award of physical custody in Michigan instead of the word “shall” provide for an award physical custody in Michigan has led to the diminished use of physical custody in Michigan and neither the Michigan Court of Appeals or Michigan Supreme Court have chimed in on mandating or defining an award of physical custody in Michigan.
Complicating matters more is the Michigan parenting time statute which is also part of the Child Custody Act of 1970 (MCL 722.27a) and provides that: “It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” To many judges and lawyers, the ‘presumption’ to have a strong relationship with both parents seems to directly conflict with an award of physical custody in Michigan.
In response lawyers and judges have began using what is less offensive and more socially acceptable phrases to identify the parent a child spends the majority of the time with such as:
- The parties are awarded “joint physical custody” with one parent being the “primary custodial parent”; or
- The children’s “primary residence shall be with the _____”.
In other cases lawyers and judges make no reference to custody and rely solely on the parenting time award to identify which parent a child spends the majority of the time with.
Whether intentional or not, the Michigan legislatures use of the word “may” in the Child Custody Act of 1970 and the higher court’s reluctance to intervene has allowed lawyers and judges flexibility and creative ways to identify which parent a child spends the majority of the time with.
The downside is that there is no clearly defined phrase to identify which parent a child spends the majority of the time.
Does this mean the end of physical custody in Michigan? Time will tell.
About Findling Law
I have been exclusively practicing divorce and family law in Michigan for over two decades. The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.
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By: Daniel Findling