Sole Custody Vs. Parental Rights in Michigan

by Elizabeth Rayne

    A determination of the degree to which each parent should be involved in the raising of minor children is an important process, involving both fundamental rights as well as what is deemed best for the child. In Michigan, these issues can often be resolved by the parents in lieu of court intervention, or by order of a judge. Either instance can lead to joint physical or legal custody, but if one parent is awarded sole custody, the other parent may request parenting time. In addition, either parent may request a modification of custody if certain conditions have changed following the original order.

    Parental Agreement

    In Michigan, as in other states, parents are encouraged to reach their own agreement regarding custody arrangements before getting the court involved. When parents cannot agree, the judge will decide the custody arrangements by looking at a number of factors to determine what is in the best interest of the child. Factors include the capacity of each parent to provide for the child, child's school record, and in some cases, the child's preferences.

    Sole Custody

    In Michigan, the court may determine that parents cannot adequately work together to take care of their child and award sole custody to one parent, meaning that one parent has both physical and legal custody. Physical custody refers to providing day-to-day care for the child and where the child primarily lives. Conversely, legal custody refers to which parent makes major decisions for the child, including issues surrounding education and medical treatment.

    Joint Custody

    In Michigan, with or without the request of either parent, the court may consider ordering joint custody. Under this arrangement, both parents share physical and legal custody. Conversely, at the discretion of the judge, the court may simply order joint physical or joint legal custody instead of both. The court will state in the record the reasons for granting or denying any custody requests. As in other matters, the decision comes down to whether the parents can cooperate, agree on important decisions, and what is in the best interest of the child.

    Parenting Time

    When the court awards sole custody, the non-custodial parent is typically given parenting time, which is time set by the court for the non-custodial parent and child to spend time together. The few cases in which a parent will not be awarded parenting time is when imminent harm to the child is likely as a result of abuse, neglect or drug abuse. The court may award specific parenting time with set schedules or reasonable parenting time, which gives the parents flexibility in scheduling. If parents cannot agree on parenting time, the court will set the schedule. When the non-custodial parent has parenting time, that parent is responsible for making "routine and emergency decisions" for the child while the child is in his care. For example, if the child is injured while the non-custodial parent has parenting time, that parent may make the decision whether or not to bring the child to an emergency room.

    Modification

    When a parent wants a change in the custody order and the parents cannot come to an agreement on the change, either parent may motion the court to change the existing order. To request a custody modification from the court, you must file a motion with the circuit that issued the custody order, and serve the other parent with the motion. The court will then schedule a hearing, where you must present evidence to support your request. You must show that it is in the child's best interest to modify the order, and demonstrate a significant or substantial change in circumstances since the original order was made. Factors that may lead to a modification include neglect, abuse, or immoral activity in the home of the custodial parent.

    About the Author

    Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."

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