CHILD CUSTODY & BEST INTEREST OF THE CHILD FACTORS
by Raymond Pater

MICHIGAN CHILD CUSTODY

Child custody disputes often are settled when the parties appear before the Friend of the Court (FOC) employee during an initial conciliation conference. FOC employees are often highly skilled at reaching a settlement, often based on the past custodial situation.

If there is a legitimate custody dispute, Michigan Courts decide custody disputes according to "the best interests of the child" factors listed below. T he Court will order the FOC to conduct a Child Custody Evaluation. 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 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 may not recite the 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.

BEST INTERESTS OF THE CHILD FACTORS

The FOC normally rules that both parties are equal on most of the factors but that a few of the factors predominate 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 and some questions that might assist you in evaluating each factor,:

(1) The love, affection and other emotional ties existing between the parties and the child.
COMMENT: MOST COMMONLY THE FOC RULES BOTH PARTIES ARE EQUAL ON THIS FACTOR.

(i) Who gets the child/ren's breakfast/lunch and dinner?
(ii) What are your child/ren's favorite food, TV programs, stories, etc.?
(iii) How does your child/ren know that you love him/her? What will your child/ren say about this, if asked?
(iv) Which of you is more apt to hear about your child/ren's problems, triumphs, adventures (i.e. comfort needed for a skinned knee, joy shared with a home run hit)?

(2) 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.
COMMENT: OFTEN ONE PARTY WILL EARN MORE THAN THE OTHER. THIS DOES NOT NORMALLY CREATE AN ADVANTAGE OR DISADVANTAGE, UNLESS ONE PARTY IS MIDDLE CLASS OR UPPER MIDDLE CLASS AND THE OTHER LIVES IN A PIG STY.

(i) Who feeds the child/ren?
(ii) Who bathes/dresses the child/ren?
(iii) Who stays home from work when the child/ren is sick? Why is that the person who stays home? (Work schedule flexibility? Sick days easier to get off, etc.?)
(iv) Who arranged for nursery school enrollment/religious education?
(v) Who puts the child/ren to bed?
(vi) What are the positive and negative points of each party's parenting skills as you see them?

(3) 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.
COMMENT: OFTEN ONE PARTY WILL EARN MORE THAN THE OTHER. THIS DOES NOT NORMALLY CREATE A LARGE ADVANTAGE OR DISADVANTAGE, UNLESS ONE PARTY IS MIDDLE CLASS OR UPPER MIDDLE CLASS AND THE OTHER LIVES IN A PIG STY.

(I) Who purchases the child/ren's clothes, toys, and other equipment?
(ii) Who arranges for and takes the child/ren to doctor/dentist appointments?
(iii) Who arranges for the babysitter/childcare?
(iv) Are there any special needs of the child/ren? Medical, education, speech, etc.?

(4) 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.

(i) Describe the present custodial home.
(ii) Describe the proposed custodial home (i.e. Is it in the same geographical location? How will a move affect the child/ren?)
(iii) Be prepared to give a satisfactory explanation of residential changes, if any.
(iv) Which home will provide the child/ren with the most love, affection, guidance, moral and spiritual training, educational and fulfillment opportunities?

(5) The permanence as a family unit of the existing or proposed custodial home or homes.
COMMENT: CAN BE A CRITICAL FACTOR IF ONE PARTY HAS A LONG TERM RELATIONSHIP AND THE OTHER HAS GONE FROM ONE RELATIONSHIP TO ANOTHER .

(i) What is the child/ren's relationship to other siblings?
(ii) What is the child/ren's relationship with the parents?
(iii) Do you have any immediate prospects of remarriage or a continuing relationship with a person who will be significant in the life of the child/ren? If so, describe that person's relationship with the child/ren and how this relationship may effect the factors in the Child/ren Custody Act.

(6) The moral fitness of the parties involved.
COMMENT: OFTEN RULED TO BE EQUAL
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(i) Has there been any drug and/or alcohol involvement by either party or stepparents? If so, how much?
(ii) Are there any romantic liaisons by either party?
(iii) Is foul language used by either party in front of the child/ren?
(iv) Have there been any allegations of physical or sexual abuse of this or any other children by any party to this action?

(7) The mental and physical health of the parties involved.
COMMENT: A PERSON RECEIVING ADEQUATE TREATMENT FOR DEPRESSION IS NOT AT A DISADVANTAGE.

(i) State the physical health, any chronic illness or medicine taken regularly of all parties to this action.
(ii) State the mental health history, marriage counseling or hospitalizations of all parties to this action.
(iii) Do physical problems prevent a parent from adequately providing for a child/ren?

(8) The home, school, and community record of the child.
COMMENT: MAY BE IMPORTANT IF THE CHILD/REN HAS ATTENDED SCHOOL IN ONE DISTRICT AND THE OTHER PARTY WISHES TO REMOVE THE CHILD/REN OR IF ONE HAS NOT PROVIDED STABILITY.

(i) What school does the child/ren attend?
(ii) What is the attendance and academic record of the child/ren?
(iii) What is the academic record of the child/ren?
(iv) What the child/ren's attitude toward school?
(v) What extracurricular activities does the child/ren participate in?
(vi) What is the parents' involvement in these activities, if any?
(vii) What are the child/ren's responsibilities at home (cleans room, does dishes, mows grass)?
(viii) What the parties' involvement in the child/ren's responsibilities?
(ix) Does the child/ren have any juvenile or other agency involvement?
(x) Does the child/ren have close relationships with friends in the area?

(9) 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) Do you feel the child/ren has a preference?
(ii) How do you feel the child/ren would react if a change of custody is granted?
(iii) Why does the other party want this change of custody?
(iv) Why don't you want this change of custody?

*(10) 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 . COMMENT: DOES ONE PARENT CONTINUALLY SAY NEGATIVE THINGS ABOUT THE OTHER?

(i) What is your proposed visitation schedule?
(ii) Do you talk about the other parent in front of the child/ren? If so, in what manner?
(iii) How do you and the other party get along with each other?

(11) Any other factor considered by the court to be relevant to a particular child custody dispute.
(i) Are you aware of the availability of joint custody and what joint custody is?
(ii) What is your understanding of the definition of joint custody?
(iii) Any other questions not covered in the previous factors that the attorney/client deems necessary and not answered previously.

(12) Whether there has been a history of domestic violence (whether or not it has been witnessed by the child).
COMMENT: DOMESTIC VIOLENCE CAN BE AN IMPORTANT FACTOR.

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.

For an experienced trial lawyer to handle your divorce or family law issues, contact Raymond Pater at 616-396-8890.