Michigan Child Custody: Legal v Physical

By: Kathryn M. Cushman

In Michigan, there are many considerations when it comes to child custody matters. These types of cases have the potential of becoming extremely complicated and stressful for everyone involved, most importantly the children. Although most parents want what is best for their children, emotions can sometimes cause a parent's judgment to be unreasonable. It is important for both parents to try to stay focused and work together to negotiate a custody and parenting time arrangement that is in the best interests of the children.

In most cases, a divorced or non-married couple will share legal custody of their children. Legal custody refers to the decision making responsibility including major decisions such as education, medical and religious issues. In joint custody cases, the parents will have equal say with respect to these decisions. It does not matter how much time the child actually spends with each parent. Only in rare cases will the court grant sole legal custody to one parent.

Physical custody has to do with whom the child(ren) will actually reside and how much time the child(ren) spend with each parent. If one parent is granted sole physical custody, then the non-custodial parent is usually awarded parenting time. There is a growing trend of courts moving away from using the term "physical custody" as it typically fosters a battle for custody between the parents. Instead, the court will focus on the parenting time schedule that dictates when and how often each parent will have the child(ren) with him or her. Also, the parenting time schedule, in conjunction with the income of the parties, generally dictates how child support is calculated using the Michigan Child Support Formula.

Joint custody can refer to just legal custody or both legal and physical custody depending on what the court determines or the agreement of the parties. When the parties have a true joint custodial arrangement, they share in both the decision making as well as the day-to-day care of the child(ren) with a more equal parenting time schedule. Typically, joint custody situations are only awarded in cases where the parties have a good working relationship and an ability to effectively communicate with respect to their child(ren), no matter how strained their personal relationship may be.

In Michigan, when making a custody decision, the court will review the case in light of the best interests of the child(ren) and consider the following factors, known as the Best Interest 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.

A recent "Mediation Matters" article by attorney Carole L. Chiamp of Chiamp & Associates PC explores the fine line that attorneys and courts walk when trying to convince parties that it is not a "custody contest." Instead, for the sake of the child, the parties need to cooperate and concentrate on the parenting time schedule as it is what really matters when all is said and done. The article can be found here:

Custody Battle v. Parenting Plans: Changing the Game

For answers to your specific custody questions, contact us at
Hickey, Cianciolo, Fishman & Finn P.C.