LEGAL STANDARDS FOR CHANGE IN CUSTODY OR PARENTING TIME PART III – WHAT ARE THE CHILD CUSTODY FACTORS?
If the court has determined that the facts of your case constitute either a change in circumstances or proper cause sufficient to re-examine the custodial environment (or parenting time) of your child, and the court has determined whether there is an established custodial environment, the court must then determine whether it is in the best interest of your child to change the current custody or parenting time order.
Pursuant to MCL 722.23, the court is required to evaluate each custody case in relation to the child custody factors. The development of these factors was intended to provide a broad overview of all aspects of a child’s life and overall well-being in each proposed custodial home. I have litigated child custody cases for over eleven years, and it is my opinion that the child custody factors still, by and large, greatly assist the courts in making these difficult decisions.
The court must make a finding, or ruling, on whether each of the child custody factors favors you or the other parent, or whether a particular factor does not apply to your particular case. The court is not required to give each factor equal weight. For instance, if one parent has or develops severe mental health issues that place your child at risk of harm while in that parent’s care, the court can base its decision primarily on that factor.
Below, are the child custody factors, as set forth in MCL 722.23:
1. The love, affection, and other emotional ties existing between the parties involved and the child.
This is always a difficult factor to argue because it is generally safe to say that both parents love their child. However, this factor also focuses on the emotional bond that currently exists between you and your child, and between your child and the other parent.
2. 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 focus here is to determine the ability of each parent to foster an emotional bond with your child in the future. It also attempts to evaluate each parent’s ability to provide future guidance, future assistance with education, and continuation of religious training, if applicable. There is sometimes overlap between the evidence presented for each of the factors. For instance, it might be that a parent’s criminal history or untreated mental health disorders also make him or her unable to provide appropriate guidance to a child.
3. 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.
This factor is not intended to favor a parent who actually earns more money, but is intended to determine both the “capacity” and “disposition” to provide for your child’s future material and medical needs. Berger v Berger, 277 Mich App 700, 712, 747 NW2d 336 (2008). However, that does not prevent the court from finding in favor of a parent with a higher earning capacity over a parent who chooses to be a homemaker. Barringer v Barringer, 191 Mich App 639, 479 NW2d 3 (1991). It can be difficult to present evidence on these standards because the court can only rely on the facts established at the hearing rather than speculating on a party’s future employment. To make it even more confusing, the court may consider that a parent has not shown any interest in pursuing a job with more than minimal income. McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998).
4. The length of time the children have lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
5. The permanence as a family unit of the existing or proposed custodial home or homes.
Factors “4” and “5” focus on stability and permanence –not on the acceptability of the home or child care arrangements. This can cover an extremely wide range of topics from the stability of a single-parent home versus a traditional nuclear family, to whether a child will be separated from his or her siblings if a change of custody is granted.
6. The moral fitness of the parties involved.
Although Michigan is a no-fault divorce state, fault can be factored into custody decisions. Feldman v Feldman, 55 Mich App 147, 222 NW2d 2 (1974); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973). However, moral fitness is only relevant to the extent that it relates to how someone will function as a parent – it is not about who is the morally superior person. Extra-marital affairs are not typically considered a reliable predictor of how someone will function as a parent. However, the court has found that if the circumstances of an affair show such horribly poor judgment and lack of insight as to adversely affect the child, the court can find in favor of the other parent. Berger v Berger, 277 Mich App 700, 747 NW2d 336 (2008). Unmarried cohabitation is also not evidence that a parent lacks moral fitness under Michigan law. Hilliard v Schmidt, 231 Mich App 316, 323–324, 586 NW2d 263 (1998).
A parent’s criminal history can be relevant under this factor. Although there is a factor specifically to address domestic violence, a parent’s other criminal convictions may be relevant to show whether they possess good moral fitness, which also ties into whether or not they can provide appropriate advice and guidance for their child.
7. The mental and physical health of the parties involved.
This factor is about more than whether a parent has a mental or physical health condition. It is about whether the condition affects his or her ability to parent their child effectively. The courts have come a long way in how they treat and view mental illness. The simple fact that you, or the other parent, has been diagnosed with depression or anxiety, in and of itself is almost meaningless. What matters is whether the condition is being treated, whether it is under control, and whether it actually affects a person’s ability to parent his or her child. This is one of the areas where it may be essential to have the testimony of an expert witness.
8. The home, school, and community record of the children.
In very young children, this factor will have no relevance. However, if you have an older child who is established in their school, is involved in extracurricular activities, and who may have a part-time Summer job, this factor can be extremely important in determining what is in your child’s best interests.
9. The reasonable preferences of the child, if the court considers the child to be of sufficient age to express preference.
Again, in very young children, this factor will likely have no relevance. However, if the court determines that your child is old enough to express a preference, the court must take your child’s preference into account. This is true even if the parents agree that they do not want to have the child interviewed – The court is not permitted to simply ignore this factor based on the parents’ agreement. In order to avoid having your child be traumatized by having to “pick” a parent in open court, the court can conduct a private in camera interview with your child. During this interview, the court is only permitted to determine whether the child has a preference and what that preference might be. The court is not required to, and usually does not, disclose the child’s stated preference. This is done to protect the parent-child relationship. There is no magic age at which a child is capable of expressing a preference, and you should remember that your child’s preference is still only one of the child custody factors, and the court does not have to give your child’s preference greater weight than any of the other factors.
10. The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the children and the other parent.
The best evidence of whether a parent is willing and able to encourage a close relationship between the child and the other parent is whether they encourage the child to spend time with the other parent. The court will not look favorably upon a parent who constantly interferes with the other parent’s scheduled parenting time, or who makes baseless allegations as a means to deny parenting time. If you are seeking to establish parental alienation syndrome, you will absolutely need to have testimony from a psychologist to prove this allegation in court.
11. Domestic violence, regardless of whether the violence was directed against or witnessed by the children.
A parent’s documented criminal history and admission of domestic violence are certainly admissible in a custody dispute. However, this is the one area where the court may require your child to testify in open court. First, what your child tells you is generally inadmissible in court because it is hearsay. Second, it is likely that your child and the other parent (or you) are the only witnesses who can testify as to the abuse. This is the one area where the courts have to put the due process rights of the accused parent ahead of the concerns for your child’s welfare. At the end of the day, the only evidence that actually exists in your case is the evidence that is properly admitted in open court under the rules of evidence.
12. Any other factor considered by the Court to be relevant to a particular child custody dispute.
This factor is just as broad as it sounds. And, whether there are any relevant facts for the court to consider will depend entirely on the facts of your individual case. We do know that it is not appropriate for the court to use race or biological preferences in considering what is in the best interests of your child. In my personal experience, I had a case where a teenaged son wanted to live with his father because the school district provided scouting opportunities for a college baseball scholarship that were unavailable to him at his mother’s. This was the only factor that the court relied on in reaching its ultimate decision to change custody.
Custody cases are difficult and sometimes driven by negative emotions and fear. Overall, the court wants your child to have two loving parents who communicate and cooperate to give your child the best experiences possible in life. Unfortunately, that is not always possible. And, after reading this, you now have a sense that establishing or changing custody is not easy. The best way to ensure your child’s well-being is to make sure that your case is handled the right way the first time by experienced attorneys.
If you have questions, please feel free to submit them to us through our website, or call us for a free consultation at: (269) 321-5059.