This checklist, which was developed by Judge Kirkendall in Washtenaw County should help parents determine how a judge may rule after hearing your particular facts and considering the child's "best interests".
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The Best Interest Factors - [abbreviated version*]
(a) The love & affection existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child.
(j) 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.
(k) Domestic violence
(l) Any other factor
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When does the Court have to utilize these "Best Interest Factors"?
Trial courts are required to make “best interests” findings of fact in each of the following circumstances: (1) when a parent seeks to terminate a full minor guardianship; (2) when a parent or the sole parent with right to custody seeks to terminate a limited minor guardianship and the parent has not substantially complied with the limited guardianship placement plan; (3) when the court, following a review if it is in the best interests of the minor child, decides to terminate the guardianship; (4) parenting time requests; (5) requests for removal of a guardian; and (6) custody and parenting time decisions. The probate court has jurisdiction and the family division of the circuit court has ancillary jurisdiction over the first five circumstances; the family division has jurisdiction over the sixth.
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How should the Court apply these Factors?
Best interests of the child are defined in the Child Custody Act of 1970, MCL 722.23. This decision tree may be of help to Judge's in making the required determinations, keeping in mind, as was stated in Lustig v Lustig, 99 Mich App 716, 731, 299 NW2d 375 (1980): “[this] determination is much more difficult than merely tallying runs, hits, and errors in box score fashion following a baseball game.”2 Also, the weight to be given each factor is ultimately left to the court’s discretion. McCain v McCain, 229 Mich App 123, 580 NW2d 485 (1998). The first two preliminary questions and the subparts of the second question are dealt with only when custody, not guardianship, decisions are at issue. The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests. MCL 722.27(1)(c).
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First Determine Whether or not there is an existing Custody Order and an Established Custodial Environment
Is there a custody order now in place? Yes or No. If the order is short-term or temporary, proceed to “Established Custodial Environment.” If the order is long-term or permanent, determine whether either a proper cause or a change in circumstances has been shown. Has a proper cause or a change in circumstances been shown: If Yes, proceed to the next question. If No, stop. Is there an “Established Custodial Environment”? Note: If the answer is Yes, the standard of proof for changing custody is clear and convincing evidence. If the answer is No, the standard of proof in determining the best interests of the minor child is a preponderance of the evidence. The following factors have been identified as relevant to this determination: Is there a previous custody order? Has the child been with the present custodian for a significant duration during which the child is given parental care, comfort, discipline, love, guidance, security, stability, necessities of life or permanence.
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Factor [a]: The love, affection, and other emotional ties existing between the parties involved and the child
Then consider the following best interests factors. The court must consider each factor and make specific findings on the record.
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
To determine if it weighs in the Mother's or Father's favor, answer the following questions:
Bonding with and relationship to competing parties—to whom is the child bonded? About whom has the child made statements indicative of bonding?
When the child has a problem, to whom does the child speak?
When the child has a triumph, to whom does the child speak?
Who spends more hours per day with the child?
Who prepares the child’s meals?
Who has the ability to separate the child’s needs from one’s own and to empathize with the child?
To whom does the child openly show signs of affection?
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