Child Custody Disputes—Frequently Asked Questions

Contested child custody is probably the most complicated and emotional issue during a divorce proceeding.

Among the issues to be investigated and resolved during the waiting period and at the finalization of the divorce, contested child custody is probably the most complicated and emotional issue. At this point some decision regarding temporary custody will already have been made as a result of the temporary hearing.

Kent County Circuit Court judges often refer custody disputes to the Friend of the Court for an evaluation, and hopefully, a resolution of the issue. The task of the evaluator is to analyze what is in the “best interests” of the children. To accomplish this, the evaluator will interview the parties, the children (where appropriate), and may talk to teachers and other community professionals, and sometimes witnesses. The evaluator then prepares a report following the points in the State of Michigan Child Custody Act (outlined below) and sends the report and recommendation to the attorneys and to the Judge. If the parties are able to resolve their dispute through this process, no further hearing regarding custody is necessary. However, if the dispute continues, the matter will be tried before the Judge, with the evaluator's testimony as only part of the evidence presented.

Best Interest Factors for Children

The Child Custody Act provides standards by which Circuit Courts must determine custody, consistent with the best interests of the child. The heart of the act provides for the "best interest of the child" and means the sum total of the following 12 factors to be considered, evaluated, and determined by the court:

  • The love, affection, and other emotional ties existing between the parties involved and the child.
  • 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.
  • 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.
  • The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
  • The permanence, as a family unit, of the existing or proposed custodial home or homes.
  • The moral fitness of the parties involved.
  • The mental and physical health of the parties involved.
  • The home, school, and community record of the child.
  • The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference.
  • 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.
  • Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  • Any other factor considered by the court to be relevant to a particular child custody dispute.

Entering into a Custody Dispute

Joint custody must by law be considered in every custody dispute. Contrary to popular belief, joint custody does not mean the parties must have the children for an equal amount of time. By way of background, there are two types of custody: legal and physical. Legal custody involves decision-making authority regarding the child, typically involving education and medical issues. Physical custody involves where the child resides, typically for a majority of the time. The parties may have joint legal custody, with physical custody with one party, or they may have joint legal and joint physical custody.

One should not enter into a custody dispute without significant forethought, particularly regarding the reasons for doing so. It should be apparent that divorce is traumatic enough for children, without injecting an unnecessary custody dispute into the proceedings. If after careful thought, you are considering a request for custody, you should consult an experienced and qualified attorney, and/or a professional family counselor who will assist you in analyzing all of the circumstances to help you make an informed and reasonable decision.

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