When one parent seeks a change of custody and the court finds that the requesting parent has proper cause to request that the court conduct a hearing on the issue, the Court’s focus will be on the child’s best interest as outlined in the Michigan Child Custody Act (MCL 722.23). The Act considers twelve (12) factors in determining what custody and parenting arrangement are in a child’s best interest.
Pursuant to the Custody Act, the “Best interests of the child” means a balancing of the following factors :
(a) The love, affection and other emotional ties 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 and to continue the education and raising of the child in his or her religion or creed, if any.
(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.
(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, if the court considers the child to be of sufficient age to express preference.
(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.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
The factors need not be weighted equally.
Just looking at your math, however, you might want to ask your son to look at this issue more closely. If he is only taking care of the child "more than once a week," he is going to have to pay support. Also, avoiding child support is a terrible reason to seek joint custody.
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The child has a right to receive support from his/her parents. As Mr. Haskell stated, the court reviews the 12 custody factors under the Child Custody Act. If the child is 3 years old and your son takes care of her "more than once a week," then it is obvious that the child's mother has been the primary caregiver for the child. Even if your son was granted joint custody, that "status" in and of itself will not negate his support obligation, since support is based on the income of the parties and the number of overnights each party exercises.
As for the judge receiving "no evidence" concerning the number of days the child's mother takes care of their child, your son's own statements support what the child's mother stated to the court.
The first issued to be determined when one files to change custody of a child or children is whether there has been a sufficient change in circumstances since entry of the last custody order, relating to 1 or more of the child custody factors, to support the request for a change. If there is a basis to go forward, then the next determination to be made is whether there is an "established custodial environment" with one or both of the parents. If the court determines that a custodial environment exists with 1 parent, then the required proof to change custody is extremely greater, and often not enough. Unfortunately, the desire to obtain "joint custody" for many is the desire to reduce a support obligation.
Your son should consult an experienced family law attorney who, upon learning of the basis for the desired change in custody (be it physical or legal custody), will be better able to advise whether a proceeding of this nature would be a waste of time and money, or the potential for a successful result.
Neil M. Colman
Mr. Colman is licensed to practice law in Michigan. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Colman strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
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