Child Custody and Best Interest of Child Factors

Custody Lawyer


In a new divorce filing, child custody disputes often are settled when the parties appear before the Friend of the Court (FOC) during an initial Conciliation or Coordination Conference. FOC employees are generally highly skilled at convincing the parties to settle or convincing a party that they must accept a proposed settlement. Such settlements are most often based on the past custodial situation. In other words, if you have taken care of the children most of the time and your spouse has visited every other weekend for the past three months, that is likely the template the FOC will follow.

If a Custody dispute exists after the initial Case Coordination Conference or Conciliation Conference, the Court may later order a Child Custody Investigation. The FOC will interview the parents, the child/ren if of sufficient age, and review relevant information provided to it. The results of that evaluation are made known in a Report and Recommendation, which evaluates both parents according to the “best interest” factors below. Because the Report often carries great weight, it may also serve as the basis for a negotiated custody settlement.

To properly prepare for a FOC interview, (or for a Petition to Modify Custody) you should review the statutory factors. Your focus should be on providing relevant information to your attorney so that your attorney can help you create a case that can be presented in a logical and persuasive manner.

When being interviewed by the FOC investigator, the FOC employee will likely not recite the exact language of the statute but will ask questions that will supply them with information on each of the twelve factors. Review the material below so that you feel comfortable when you enter the FOC office. You must demonstrate that you are a reasonable person who would be the best primary caregiver for your child(ren).

SETTLEMENT: Because the FOC often wants to settle the matter as quickly and easily as possible, they may want to work out a possible negotiated settlement, right on the spot. Be prepared for a potential “compromise”. Don’t agree to anything unless you are sure it is the right thing. Don’t make the mistake of accepting a settlement in the rush of the moment, and then later wishing you had not done so. You may want to discuss the possible terms of a settlement with your attorney before meeting with the FOC .

ALCOHOL or DRUGS: If your spouse will allege that you have substance or alcohol abuse problems, immediately stop using any alcohol or drugs. Don’t offer the other side any ammunition. Similarly, if there is an allegation that you are having an affair, you should discontinue the affair. Keep in mind that fault can be an important issue, but that the Court will be concerned with fault issues that directly affect the child(ren).

CALENDAR: Keep an accurate calendar and write down what hours you work, what time you got home, what you did with your child(ren), what time your spouse got home, what they drank, etc. That way, if your spouse alleges you returned home at 3:00 a.m., you can turn to your calendar as proof of what really happened. This does not have to be a long recitation, but only of major events.


The Child Custody Act lists the best interest factors that are applied broadly to disputes between parents, third parties and agencies. When considering a custody dispute a court must consider and set forth (declare) findings on each of the child custody factors set forth below and found in MCL 722.23. When considering a parenting time dispute, the court must consider the factors set forth in MCL 722.27a.

For a detailed review of the Child Custody Factors and how they are to be evaluated, see Best Practices Tips.

If the FOC conducts a child custody investigation it normally rules that both parties are equal on most of the factors, with only a few of the factors predominating in favor of one parent. It is wise to carefully review all the factors, but center most of your attention on the factors where there is a clear difference between you and the other parent. The statutory factors that the FOC and later the Court may consider are set forth below. I include a comment for some of the factors:

(a) The love, affection and other emotional ties existing between the parties and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and continuation of the educating and raising of the child In its religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, 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.
COMMENT: This is often very important, especially if one of the parties has created an established custodial environment, that can raise the burden of proof from a preponderance of the evidence to clear and convincing evidence.

(e) The moral fitness of the parties involved.
COMMENT: Often ruled to be equal

(f) The mental and physical health of the parties involved.
COMMENT: A person receiving adequate treatment for depression is not at a disadvantage.

(g) The home, school, and community record of the child.

(h) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
COMMENT: Beware, often children will tell both parents what they want to hear. There is no age where a child/ren can automatically choose where he or she wants to live.

(i) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent .

(j) Whether there has been a history of domestic violence (whether or not it has been witnessed by the child).

(k) Any other factor considered by the court to be relevant to a particular child custody dispute.

An attorney experienced in child custody disputes can assist you in marshalling the evidence, in obtaining the right witnesses and presenting your facts and arguments.