Will You Get Sole Custody Of Your Children?

When a parent’s relationship breaks down the first question is often who will “get” the kids. Fear of losing control of your children could push you to take an all-or-nothing approach in court. In a hotly contested custody battle, is the judge likely to award you sole custody of your children?

Understanding Michigan Custody Law

Michigan’s Child Custody Act applies to all custody disputes, whether as part of a divorce, or custody action between unmarried parents. It controls how the family court will decide whether you should get sole custody of your children. The Custody Act governs two distinct concepts:

1. Who gets to make the big decisions (educational, religious, or medical) in children’s lives. This is called “legal custody.”
2. With whom the children will spend their time. This was historically “physical custody” and includes parenting time.

When most people come to a family lawyer seeking “sole custody” they mean they want the children to live in their home. This is more accurately a decision by the judge to award parenting time. Technical labels aside, the question remains, will you be able to keep your kids with you after you separate?

Michigan Law Presumes Children Benefit From Having Two Parents

You may want nothing more to do with your spouse or partner, but to your children, that person is still mom or dad. Michigan law presumes that a child benefits from maintaining a strong relationship with both parents. Because of this, joint legal custody awards are common, and parenting time is awarded to both parents except when doing so would not be in the child’s best interests. The exceptional cases – where sole legal custody and suspended parenting time can be an option – may typically include at least one of the following:

• Severe or uncontrolled mental health issues that affect a parent’s ability to parent
• Domestic violence against or in the presence of the child
• Child abuse or neglect
• Substance abuse in the child’s presence
• Incarceration
• Reasonable concerns the parent will attempt to take the child and flee
• Demonstrated substantial inability for the parents to agree on how to care for the child

Primary Physical Custody Depends On The Best Interest Factors

Acknowledging that your co-parent will likely be involved in your child’s big life decisions doesn’t mean your hopes of keeping your child with you are dashed. In many counties across the state, judges typically award primary physical custody of children to the parent who acted as a primary caregiver before the separation. In other cases, the circumstances may dictate that one party is clearly more capable to serve as the primary physical custodian, in charge of the child’s day-to-day life.

The court cannot simply take the parties’ word, however. In deciding how to award custody, the court must look at 12 “Best Interest Factors” connected to the care of the child:

1. The love, affection, and other emotional ties between parent and child.
2. Each parent’s capacity and disposition to guide the child in education and religion (if any).
3. Each parent’s ability and willingness to provide for the child’s physical and medical needs.
4. The child’s existing environment.
5. The permanence of each parent’s home and family.
6. The moral fitness of each parent as it relates to caring for the child.
7. The mental and physical health of each parent as it relates to caring for the child.
8. The home, school, and community record of the child.
9. The child’s reasonable preference (if old enough).
10. Each parent’s willingness to encourage a relationship between the child and the other parent (other than in cases of domestic violence or sexual assault).
11. Domestic violence.
12. Any other factor relevant to the child’s circumstances.

To get primary physical custody you and your family law attorney will need to show that it is best for the child to be with you, given these 12 factors.

Increasingly, courts are awarding joint parenting time schedules in cases where both parents are fit and live close to one another. If sole custody is a priority, you will need a skilled family law team to show the court why it is best for your children.

The Cronin Law Firm has experienced attorneys to aid with whatever legal issue you’re facing. If you need a custody order for your children, contact The Cronin Law Firm today to schedule a consultation.