TYPES OF CHILD CUSTODY
There are two types of custody: Legal Custody and Physical Custody.
Legal custody refers to who has the legal right to make important decisions for a child including decisions affecting the child’s health, education and welfare.
Physical custody refers to who has the legal right to have the child reside with them. Parenting time refers to who has the legal right to have specific time with the child to parent the child.
Legal custody can be granted to one parent (sole legal custody) or jointly to both parents (joint legal custody). If parents share joint legal custody, the parents must jointly make important decisions affecting their child’s welfare. Regardless of who has legal custody, both parents may decide all routine matters concerning the child while the child is with that parent.
Physical custody can be granted to one parent (sole physical custody) or jointly to both parents (joint physical custody). Joint physical custody does not necessarily mean that the parties will have equal time with the child. The parties may agree or the Court may order whatever parenting time plan is in the child’s “best interests.”
In making custody determinations, the Court looks to the “best interests” of the child. In Michigan, there are 12 “best interests” factors. See MCL 722.23. No one factor indicates how custody should be awarded.
Evaluation of the 12 “best interests” factors depends on the facts and circumstances of each case. Custody is not awarded on the basis of which parent “scores” the most points. Factors need not be given equal weight. The weight to be given any factor is ultimately left to the court’s discretion.
The “best interests” of the child means the sum total of the following 12 factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child. This factor focuses on the emotional bond that already exists between the parent and the child.
(b) 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. This factor tries to project the parent’s ability to foster an emotional bond in the future, and the parent’s impact on such matters as education, guidance, and religious training.
(c) 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.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes. This factor focuses solely on the permanence of the family environment, not the acceptability of the home or child care arrangements.
(f) The moral fitness of the parties involved. This factor evaluates the parties’ moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult.
(g) The mental and physical health of the parties involved. This factor should not impair or defeat the public policy goal of integrating disabled persons into the mainstream of society.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. The court must take the preference of the child into account if it decides that the child is old enough to express a preference. The court is not required to disclose the child’s preference. The child’s preference does not automatically outweigh other factors; it is only one element used to make the determination.
(j) 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.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
( l ) Any other factor considered by the court to be relevant to a particular child custody dispute. The court may not consider the race of a parent’s spouse in considering whether to change custody.