Divorce and Custody: Frequently Asked Questions
Chapter 5: Custody & Parenting Time

<- Chapter 4: Temporary Orders Chapter 6: Child Support and Child Care ->

What is the difference between legal and physical custody?

Physical custody refers to where the children reside (usually sleep). Legal custody refers to who has the power to make major decisions for the child.

What factors does the court look to in determining custody?

The following factors are used:

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, guidance and continuation of educating and raising of the child in his/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 the state in the place of medical care, or 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 deems the child be of sufficient age to express preference;
The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent / child relationship between the child and the other parent;
The presence of domestic violence, regardless of whether the violence was directed against or witnesses by the child;
Any other factor considered by the court to be relevant to a particular child custody dispute.

If I do not have custody, how does the court determine how much parenting time I receive?

The law provides that the court shall grant parenting time in accordance with the best interests of the child. The court, therefore, will examine the entire situation. In a typical case, many judges order the following:

every other weekend;
one or two evenings per week;
every other holiday;
½ of Christmas break; ½ of spring break;
Mother's day to Mom; Father's day to dad;
every other birthday of the child;
one or more weeks in the summer

The parties may come to their own agreement on the schedule, subject to the court's approval. Usually, the court is pleased when the parties form their own agreement.

Is it likely that the court will award joint physical custody?

No. Some judges recently have begun to award joint physical custody with one of the parents being designated as the primary custodian. However, this is usually just window dressing on a full custody to one parent situation.

Can the children decide which parent they live with?

No. And there is no magic age where they can decide. However, when they are 16 or 17, most judges will allow a strong minded child to all but make the decision. The court is required to consider the reasonable preferences of a child old enough to have a preference.

Why does the mother usually receive custody of the children?

The mother usually receives custody because she is usually the one who has been home taking care of the children. Historically, the father has been out earning a living for the family and as such, does not spend nearly as much time with the children. Also, many (but not most) judges are biased against fathers and for mothers.

Can my child be forced to testify as a witness in the divorce trial?

No. In custody cases, the judge speaks with the children in private. Attorneys and parents are not allowed to be present. And the judge is not required to disclose what the children told him.

My spouse will not allow me to see the children. Will the court force my spouse to allow it?

Assuming that you are not a danger to the children, yes.

Do I have to let my children go for parenting time when it appears that the other parent has been drinking?

No. You always have the right and obligation to do what is in the children's best interests. I strongly advise discussing this issue with an attorney if it occurs. Without the assistance of an attorney, you may find yourself wrongfully charged with contempt of court.

I would like to pay my support directly to my spouse. Is this allowed?

Legally yes. However, some judges will not allow it.

Can I move the children to another state or to another location in Michigan?

Maybe. The move out of state must be approved by the judge. All instate moves over 100 miles must now be approved by the judge. Depending on the status of your case, any move may have to be approved. I advise to never move your residence without consulting an attorney first.

<- Chapter 4: Temporary Orders Chapter 6: Child Support and Child Care ->

Divorce and Custody: Frequently Asked Questions Chapter 5: Custody & Parenting Time

Divorce and Custody: Frequently Asked Questions
Chapter 5: Custody & Parenting Time