Child custody disputes present some of the more complex legal issues that are subject to Michigan divorce laws. This is particularly true if the case involves interstate parenting and the family law statutes of other states.

A recent Michigan Court of Appeals opinion reviewed a dispute over joint custody and out-of-state relocation, and considered many factors common to all divorced parents who have children. The case also underscores the importance of working with an experienced Michigan divorce lawyer at all stages of the legal process.

Determining Physical Custody Under Michigan Law When Parents Part Ways

The parents were married in 1999 and have three minor children, all of whom have lived in their father’s Michigan home town all of their lives. The mother filed for divorce in 2010, and both parents sought primary physical custody of the children.

The mother, who was the family’s primary breadwinner, had plans to start a new job in Florida, where neither parent had relatives. For that reason, she sought to move the children out of state after they completed the school year if she was awarded physical custody.

The family court based its custody decision on the testimony of the parents and the statutory factors that go into assessing a child’s best interests. The factors relevant to Michigan child custody determinations include:

  • Love, affection and emotional ties existing between the individual parents and their children
  • The parents’ capacity and disposition to give children love, affection and guidance, including education and religion decisions
  • The parents’ capacity and disposition to provide for needs such as food, clothing and medical care
  • The length of time the children have lived in their current environment, and the desirability of maintaining that situation
  • The permanence of the existing or proposed custodial home for the family unit
  • Each parent’s moral fitness, as well as their mental and physical health
  • Home, school, and community records of the children
  • Each child’s reasonable preferences, based on the court’s determination that the child is of sufficient age to express a preference
  • The willingness and ability of each parent to facilitate and encourage ongoing parent-child relationships with the other parent
  • The presence of domestic violence in the relationship, regardless of whether the children suffered or witnessed any abuse

The court awarded primary physical custody to the father and joint legal custody to both parents. The mother appealed from the court’s divorce and child custody order.

When Does Relocation Become a Separate Legal Matter?

The mother argued on appeal that the trial court erred by considering only the best-interest factors for making child custody determinations. She maintained that the court should have separately assessed the change-of-domicile factors provided in another section of Michigan child custody law that governs parental relocation. These factors include:

  • Whether the change in legal residence will improve the quality of life of the children and the parent
  • Previous compliance with and utilization of court-ordered parenting time by each parent, and whether the relocation is based on a desire to diminish the other parent’s time with the children
  • Whether relocation is possible while still preserving the parental relationship with the other parent
  • The extent to which the other parent opposes relocation based on a desire to increase support obligations
  • Domestic violence (again, regardless of the children’s’ personal experiences with the alleged violence)

The court summarily rejected the notion that the trial court should have applied these factors, because the statute applies only to situations where a parent seeks modification of a custody order that is already in place to govern the children’s residence and visitation schedules. Notably, both parents had remained in the family home during the divorce, so no temporary custody orders had been necessary.

Considering the Importance of an Established Custodial Environment

The mother also argued that the trial court should have determined whether either parent had established a custodial environment with the children, and asserted that she alone had such a relationship. This factor is important in a custody determination because it affects whether the court uses a “preponderance of the evidence” standard or requires a greater burden of proof regarding the best interests of the children.

The appellate court agreed with this argument, holding that the trial court failed by assuming that, because the children lived with both parents, it did not need to examine whether an established custodial environment existed. Under Michigan family law, the court can only change an established custodial environment of a child based on “clear and convincing evidence” that the change is in the best interest of the child.

Based on this holding, the court remanded the case to the trial court for further proceedings to assess whether an established custodial environment existed, and if so, whether either parent had presented clear and convincing evidence that changing it served the children’s best interests. However, the court upheld the court’s existing factual findings against the mother’s challenges, including her allegations of domestic violence.

Working With an Experienced Family Law Attorney at All Stages of a Divorce

The complex legal issues considered in this appeal underscore the importance of working with a Michigan divorce lawyer when child custody and child support are contested. As divorce laws evolve and new court interpretations emerge, legal advice backed by practical experience can make a significant difference in the final legal outcome.