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Frequently Asked Questions About Child Custody In A Divorce Case

What Determines A Court's Decision On Child Custody?

Michigan law requires that a judge evaluate 12 different factors, which are referred to as the "Best Interests of the Minor Child Factors." "Best interests of the child" means the sum total of the following 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 deems the child to be of sufficient age to express 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 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 factors considered by the court to be relevant to a particular child custody dispute.
  • While extensive volumes have been written about these individual factors, the overriding consideration is the custody arrangement that will create the least amount of disruption in the child's life.

Central to that discussion is which parent has been the primary caregiver of the child. That is, who does the child look to for his or her daily needs, including health care, schooling, feeding, clothing and nurturing? Men should keep in mind that a custody determination under the law is not necessarily based upon what is "fair" to either parent, per se, but rather what a judge deems to be in the best interests of the child. Further, the factors primarily apply to a parent's capacity to parent.

For instance, a party's mental or physical health will only be relevant to the extent that it has an impact on the parent's ability to care for or set an example for the child. A party's moral fitness will primarily be relevant in terms of that party's ability to set a good moral example for the child.

At What Age Does A Child's Preference Factor Come In The Custody Decision?

The short answer is that there is no magic age. The reasonable preference of the minor child is one of the Best Interest Factors that the judge will consider when determining custody. The key is the term "reasonable."

An extremely young child, typically less than 7 years old, is viewed as too young to express a preference. But the older and more mature the child is, the more likely his or her preference will be considered. That said, the child cannot officially decide where he or she wants to live until the age of 18. That decision is up to the judge who has jurisdiction over the case.

If a child's preference is to be considered, the court will typically meet with the child privately, and that conversation will technically be confidential. A child will never be asked outright which parent he or she chooses, but rather would be asked different questions that illuminate the judge on their preference.

A client should never bring a child to a court proceeding unless the instructed by the court to do so, regardless of how much the child wants to express  their preferences.

If you're preparing for divorce, contact the American Divorce Association for Men for a FREE initial telephone consultation at 248-356-ADAM (2326), and get the information and legal answers you're seeking.

About ADAM (American Divorce Association for Men)

The American Divorce Association for Men (ADAM) is a group of highly qualified attorneys who advocate for men’s rights in divorce, child custody and parenting time, paternity, support, property settlement, post judgment modifications, and other family law matters. Since 1988, ADAM has been aggressive, diligent, and uncompromising when representing their clients. A team of compassionate and skilled family law attorneys, ADAM is dedicated to being Michigan’s leading divorce attorneys for men.

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