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Michigan Child Custody Checklists

Written by: Timothy P. Smith

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Child Custody Family

Posted over 2 years ago. Applies to Michigan, 11 helpful votes, 0 comments

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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

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.

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).

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.

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?

Factor [b]: The capacity and disposition of the parties involved to give the child love, affection, and guidance.

(b) 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. To determine if it weighs in the Mother's or Father's favor, answer the following questions: Who bathes and dresses the child? Who stays home from work when the child is sick? Who takes responsibility for involvement in academic affairs? Who takes responsibility for involvement in extracurricular activities? Who disciplines the child? Who uses preferable discipline techniques? Who has preference because of the other’s verbal abuse, substance abuse, or arrest record? Who has preference because of the ability to provide the child access to an extended family?

Factor [c]: The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care

(c) 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. To determine if it weighs in the Mother's or Father's favor, answer the following questions: Who makes purchases for the child? Who attends to special needs of the child? Who has greater earning capacity? Who adjusts working hours based on the needs of the child? Who has certainty of future income? Who has the ability to provide insurance for the child? Who attends classes for professional involvement? Who has requisite knowledge to meet the needs of the child? Who schedules and takes the child to medical appointments? Who schedules and takes the child to dental appointments? Who arranges for and supervises child care?

Factors [d] and [e]: Stability and Continuity as well as Permanence of the proposed Custodial Home.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. To determine if it weighs in the Mother's or Father's favor, answer the following questions: Who can provide a safe environment? Who can provide continuity? (e) The permanence, as a family unit, of the existing or proposed custodial home or homes. In whose custody will the family unit not be split? The issue is not an “acceptability of the custodial home” standard. See Ireland v Smith, 451 Mich 457, 547 NW2d 686 (1996); Fletcher v Fletcher, 200 Mich App 505, 517, 504 NW2d 684 (1993), rev’d on other grounds, 447 Mich 871, 526 NW2d 889 (1994).

Factor [f]: The moral fitness of the parties involved

(f) The moral fitness of the parties involved. Who has priority as a result of the other party having an extramarital affair known by the children? If the children don't know, this may be a "non-issue" Has either party engaged in any of the following conduct: Verbal abuse. Drinking problem. Poor driving record. Physical or sexual abuse of the child. Other illegal or offensive behaviors. The elements set forth under this factor illustrate the dangers of the use of checklists in making best interests determinations. Caution: the thrust of all inquiries about the behavior of the contestants should be directed toward the effect of such behaviors upon the child, or as the supreme court stated in Fletcher, “questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent.”

Factor [g]: Mental and Physical Health of the Parties Involved [Mom and Dad]

g) The mental and physical health of the parties involved. To determine if it weighs in the Mother's or Father's favor, answer the following questions: Does either party have a physical or mental health problem that significantly interferes with the ability to safeguard the child’s health and well-being? Age of contestant compared to age of the child—would energies of the child overwhelm the contestant?

Factor [h]: The home, school, and community record of the child.

(h) The home, school, and community record of the child. To determine if it weighs in the Mother's or Father's favor, answer the following questions: Who can provide leadership to attend school? Who can provide leadership in extracurricular activity participation? Who is actively involved in school conferences, transportation, and attendance at school events? Who can more adequately assist reducing the necessity for other agency involvement (the juvenile court, the DHS), or if another agency is involved, who can cooperate more fully? Who can more adequately assure the child’s access to friends and peers useful for the child’s development? Who can more adequately plan and supervise the child’s undertaking of home responsibilities that are appropriate to the child’s age and circumstances? Who takes responsibility for completion of school assignments?

Factor [i]: Child's Preference and the Parents willingnes to facilitate a relationship between the child and the other parent.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.13 Whom does the child favor? (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 or the child and the parents. Who can best cooperate with an appropriate parenting time schedule by the other party? Who is least likely to disparage the other parent in the presence of the child based upon past performance?

Factors [k]&[l]: Domestic Violence and "Any other Factor"

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. [In guardianships, MCL 700.5101(a), Have there been incidents of violence in the home by any party against any party? If so, has there been a police report, arrest, or conviction? Has there been a pattern of violence whether reported or not reported? (l) Any other factor considered by the court to be relevant to a particular child custody dispute. [In guardianships, MCL 700.5101(a). Who can most likely address the special needs of the child? Has either parent threatened to kidnap the child? Does either parent spend excessive time traveling for the child? Does either parent have a record of failure to exercise parenting time, failure to notify, or failure to return the child? Who has responsibility for the actual and proposed child care arrangements?

If there is an existing Custody Order, when can I file a motion to change that order?

In Vodvarka v Grasmeyer, 259 Mich App 499, 675 NW2d 847 (2003), the court of appeals held that to establish “proper cause” necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. “The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being.” Id. at 512. To establish a “change of circumstances,” a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, “which have or could have a significant effect on the child’s well-being,” have materially changed. Id. at 513. The Vodvarka court also held that the movant cannot rely on facts that existed before entry of the custody order to establish a “change” of circumstances.

If I file a motion to change custody - what is my burden of proof?

Or, in layman's terms, "How much proof do I need?" There are two separate levels of sufficiency of evidence for best interests findings of fact. When there is an established custodial environment, clear and convincing evidence is the standard. McMillan v McMillan, 97 Mich App 600, 296 NW2d 118 (1980). Clear and convincing is a very high standard. If there is no established custodial environment, the standard is a preponderance of the evidence. Lewis v Lewis, 138 Mich App 191, 360 NW2d 170 (1984). This is an easier standard or burden of proof. Think of it this way - if you stack all the evidence in your favor on one side of a scale and all the evidence against you on the other side, you win if the scale tips ever so slightly in your favor. With "clear and convincing" it has to tip clearly and convincingly in your favor.

How do I know if there is an "Established Custodial Environment"?

The question whether an established custodial environment exists is preliminary and essential, and it is entirely a factual determination. The trial court’s findings will be sustained unless the evidence clearly preponderates in the opposite direction. Ireland v Smith, 451 Mich 457, 547 NW2d 686 (1996). In Mazurkiewicz v Mazurkiewicz, 164 Mich App 492, 417 NW2d 542 (1987), the court defined an established custodial environment as one where time is an important factor. It should be of significant duration during which the child is given parental care, discipline, love, and guidance that are age- and needs-appropriate and where the relationship is marked by qualities of security, stability, and permanence. The judge should look to the situation in the years immediately preceding the action. Schwiesow v Schwiesow, 159 Mich App 548, 406 NW2d 878 (1987). In Bowers v Bowers, 198 Mich App 320, 497 NW2d 602 (1993), the court stated that an expectation of permanence is a factor in determining i

Conclusion

I hope that this synopsis of the Best Interest Factors and the checklist give you an idea of how a Judge will look at and weigh each factor. This should help you organize and arrange your thoughts as it relates to the Child Custody issues you may currently be facing.