CHILD CUSTODY

 
 


Custody and Parenting Time of Minor Children

What type of custody award should be made involving the parties’ minor children?  There are three types of custodial arrangements:
    • Sole legal and physical custody to one parent with parenting time to the non-custodial parent. 
    • Joint legal custody to both parents with physical custody to one of the parents.
    • Joint legal and joint physical custody and an allocation of parenting time.

What parenting time provisions should be established for the noncustodial parent?  

Under the Child Custody Act of 1970, the Court is required to do what is in the best interests of the parties’ minor children and considers Twelve Best Interest Factors in making this decision.

Custody of Minor Children
  • Who will be awarded custody of the parties’ minor child/children?

One of the most important issues in a domestic relations matter is the disposition of the custody issue.  It is the responsibility of the trial court to do what is in the best interests of the minor children involved. This requires the application of the 12 statutory Best Interest Factors:

  1. The love, affection, and other emotional ties existing between the parties involved and the child.
  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.
  3. The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs.
  4. The length of time the child has 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.
  6.  The moral fitness of the parties involved.
  7. The mental and physical health of the parties involved.
  8. The home, school, and community record of the child.
  9. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
  10. 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.
  11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  12. Any other factor considered by the court to be relevant to a particular child custody dispute.
  • Is there an established custodial environment?

The trial court, if the parties can agree on custody, must make a decision on what is in the best interests of the children, and if the child or children are living in an ESTABLISHED CUSTODIAL ENVIRONMENT.  An established custodial environment is which parent provides guidance, discipline, necessities and parental comfort over an appreciable period of time.  Once an Order is made awarding custody before any change can be in made in the established custodial environment, the Court must determine if there is proper cause or change of circumstances before the Court will be required to conduct an Evidentiary Hearing and apply the Twelve Best Interest Factors.  Whether or not an established custodial environment exists is a question of fact for the trial court to resolve based on the statutory factors.  If the trial court determines that an established custodial environment in fact exists, it makes no difference whether temporary or permanent, or without a court order, or in violation of a court order, or by a court order which was subsequently reversed. (Blaskowski v. Blaskowski, 115 Mich App 1, 320 NW2d 268 (1982).

When there is an established custodial environment, the parent or party desiring to change that established environment must show by clear and convincing evidence that there is property cause or a change of circumstances.

On the issue of joint custody, the Court is required to determine that the parties are able to agree and cooperate on important decisions in the children’s lives and then apply the Twelve Best Interest Factors.

Child Support of Minor Children

  • Under a Michigan Statute §MCL 552.605, what provisions should be made for the support of the minor children?

MCL §552.602(ff) defines support to include payment of medical, dental, and other health expenses; childcare expenses; and educational expenses. Child support is to be ordered in accordance with the Michigan Child Support Formula. Child support may vary from the formula determination if the court determines that application of the formula would be unjust or inappropriate. The court must also present either in writing or on the record (1) the support amount determined by application of the formula; (2) how the support order deviates from that amount; (3) the value of property or other support awarded in lieu of any payment of support, if applicable; and (4) the reasons that the application of the formula would be unjust or inappropriate. MCL §552.605(2).

  • What level of child support should be established?

In determining child support, the trial court must generally follow the formula set forth in the MCSF Manual, which is published by the FOC pursuant to legislative mandate. MCL §552.519(3)(a)( vi ); MCL §552.605(2); Shinkle v. Shinkle ( On Rehearing), 255 Mich.App. 221, 225, 663 N.W.2d 481 (2003). Similarly, the FOC is generally required to use “the child support formula found in the MCSF Manual in calculating support. MCL §552.517(3). [T]he child support formula ‘shall be based upon the needs of the child and the actual resources of each parent.’ ” Ghidotti v. Barber, 459 Mich. 189, 198, 586 N.W.2d 883 (1998), quoting MCL §552.519(3)(a)( vi ). When ordering child support, the trial court is governed by statute as follows:

Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL §552.519. The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:

(a) The child support amount determined by application of the child support formula.

(b) How the child support order deviates from the child support formula.

(c) The value of property or other support awarded instead of the payment of child support, if applicable.

(d) The reasons why application of the child support formula would be unjust or inappropriate in the case. [MCL §552.605(2).]

Subsection 2 of MCL §552.17 was deleted in 2001, and MCL §552.605 was amended that same year. 2001 PA 106 and 107. Therefore, Burba remains controlling authority.

Dependency Exemptions on
Federal & State Income Tax  Returns

  • Who will claim the dependency exemptions for the minor children on the parties’ Federal, State, and City income tax returns?

The custodial parent is entitled to claim the children, unless the parent expressly waives the claim in writing. This may be done using IRS Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents. This form allows the release to be for one year or longer. In Fear v Rogers, 207 Mich App 642, 526 NW2d 197 (1994), the Court of Appeals held that a trial court had the authority to order the custodial parent to execute an IRS Form 8332 and thus to control which parent could take the exemption.

Health Care Expenses and Insurance

  • Under MCL §552.602(ff), who will provide and be responsible for the insured and uninsured medical, dental, health, and hospitalization expenses and insurance for the minor children and the parties?

The Support and Parenting Time Enforcement Act, MCL §552.601 et seq., requires that one or both of the parents obtain or maintain any health care coverage that is available to them at a reasonable cost, as a benefit of employment, for the benefit of the parties’ minor children. If a parent is self-employed and maintains health care coverage, the court requires the parent to obtain or maintain dependent coverage for the benefit of the parties’ minor children, if available at a reasonable cost. MCL §552.605a(2).

  • The Employee Retirement Income Security Act of 1974 (ERISA), requires employers’ group health plans to provide coverage for “alternate recipients” under qualified medical child support orders. 29 USC §1169. This statute gives children of divorced group health plan participants the right to receive health benefit coverage under the participant’s employer’s plan, even if the children do not live with the participant or are not the participant’s financial dependents. The statue also allows the carrier to communicate directly with the child’s custodial parent and directly reimburse that parent for the child’s expenses.

 

 
The information you obtain at this site is not, nor is it intended to be, legal advice.  You should consult an attorney for individual advice regarding your own situation.