Custody and Parenting Time in Michigan

Michigan's terms

Michigan still uses the word custody, and the time a child spends with each parent is called parenting time. The governing statute is the Child Custody Act of 1970, MCL 722.21 to 722.31.

• Joint custody (MCL 722.26a(7)) means an order that the child lives alternately for specific periods with each parent, that the parents share decision-making on important decisions, or both.
• Routine decisions belong to whichever parent the child is with at the time (MCL 722.26a(4) and 722.27a(11)).

The best interest factors

When parents disagree, the best interests of the child control (MCL 722.25(1)). MCL 722.23 defines best interests as the sum of these factors:

• (a) The love, affection, and other emotional ties between each party and the child.
• (b) Each party’s capacity and disposition to give the child love, affection, and guidance and to continue the child’s education and raising in the child’s religion or creed, if any.
• (c) Each party’s capacity and disposition to provide food, clothing, medical care, and other material needs.
• (d) How long the child has lived in a stable, satisfactory environment, and the desirability of continuity.
• (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
• (f) The moral fitness of the parties.
• (g) The mental and physical health of the parties.
• (h) The child’s home, school, and community record.
• (i) The child’s reasonable preference, if the court considers the child old enough to express one.
• (j) Each party’s willingness and ability to encourage a close and continuing relationship between the child and the other parent. A court may not count against a parent any reasonable action taken to protect the child or that parent from sexual assault or domestic violence by the other parent.
• (k) Domestic violence, whether or not it was directed against or witnessed by the child.
• (l) Any other factor the court considers relevant.

The custody motion form, FOC 87, asks you to explain which of these factors support your request. Organizing your facts factor by factor makes them easier for the court and the Friend of the Court to follow. See FOC 87 item by item.

Joint custody

In a custody dispute between parents, the parents must be told about joint custody, and if either parent asks, the court must consider it and state its reasons for granting or denying it on the record (MCL 722.26a(1)). Besides the best interest factors, the court considers whether the parents can cooperate and generally agree on important decisions.

If the parents agree on joint custody, the court must award it unless it finds on the record, by clear and convincing evidence, that joint custody is not in the child’s best interests (MCL 722.26a(2)). Joint custody does not end the duty to pay child support (MCL 722.26a(6)).

The established custodial environment

Michigan law protects the stability a child already has. Under MCL 722.27(1)(c), a custodial environment is established if, over an appreciable time, the child naturally looks to the custodian for guidance, discipline, the necessities of life, and parental comfort. The court may not change an established custodial environment unless there is clear and convincing evidence that the change is in the child’s best interest.

When a contested motion would change a child’s established custodial environment, the court must first hold an evidentiary hearing (MCR 3.210(C)(1)).

How parenting time is set

Under MCL 722.27a(1), parenting time is granted in the child’s best interests, and it is presumed to be in a child’s best interests to have a strong relationship with both parents. A child has a right to parenting time with a parent unless it is shown by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health (MCL 722.27a(3)).

If the parents agree on parenting time terms, the court must order them unless it finds by clear and convincing evidence that they are not in the child’s best interests (MCL 722.27a(2)). Either parent can ask for parenting time in specific terms at any time (MCL 722.27a(8)).

In deciding the frequency, duration, and type of parenting time, the court may consider factors listed in MCL 722.27a(7), including the child’s special needs, a nursing infant, the reasonable likelihood of abuse or neglect, the burden of travel on the child, whether a parent has frequently failed to use parenting time, and any threatened or actual detention of the child.

An order can include reasonable conditions, such as who transports the child, set pickup and return times, supervised parenting time, restrictions on third persons, or a bond to secure compliance (MCL 722.27a(9)).

Parents and third parties

If a custody dispute is between a parent and a third person, the court presumes the child’s best interests are served by custody with the parent, unless the contrary is shown by clear and convincing evidence (MCL 722.25(1)).

Primary sources

Rules and forms change. Check the current version at the source before you file.

• MCL 722.23, best interests of the child
• MCL 722.25, controlling interests and presumption
• MCL 722.26a, joint custody
• MCL 722.27, powers of the court and custodial environment
• MCL 722.27a, parenting time
• MCR 3.210(C), custody hearings