Child custody is the most contentious aspect of a divorce case. Each parent usually fights over who will get custody of the children. Once a divorce case is filed, a parent can sometimes get an ex-parte order for temporary child custody. If no objection is filed within the time limit, then the ex-parte order becomes a temporary order and can then be crafted into a permanent order. If an objection is filed, then the court will schedule a hearing and the judge will decide who gets temporary custody of the children.
During the divorce process, the court will determine who will have custody of the children. This is based on the “best interests of the children” factors. The factors are listed in MCL 722.23 and are:
- The love, affection, and other emotional ties existing between the parties involved and the child.
- The capacity and disposition of the parties involved 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 recognized and permitted under the laws of this state in place of medical care, and other material needs.
- The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- The permanence, as a family unit, of the existing or proposed custodial home or homes.
- The moral fitness of the parties involved.
- The mental and physical health of the parties involved.
- 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.
Most child custody cases will be referred to the Friend of the Court (FOC) for a recommendation. The judge does not necessarily have to agree with that recommendation and can award custody to the other spouse. You can even object to the FOC recommendation and request an evidentiary hearing to have the judge decide the custody question.
There are two kinds of custody relationships in
1) Legal Custody: This is the type of custody based on who will make the decisions for the child. These decisions include: where the child goes to school, what kind of medical care will they receive, what doctors they will see, etc. The court can grant either joint legal custody, where both parents will decide these issues, or sole legal custody, where only one parent will decide these issues.
2) Physical Custody: This is the type of custody based on which parent the children will primarily reside with. This can likewise be joint physical custody, where the children will reside with each parent 50% of the year, or sole physical custody, in which the child will reside primarily with one parent.
You don’t have to lose your children. Call your Metro-Detroit Divorce Lawyer at (586) 439-4297, Extension 0, and see what I can do for you!