Child Custody Factors: Conclusion

The holidays have come and gone, and perhaps the reconciliation attempts for your marriage or relationship are no longer successful.  You held out for your presents, and now it’s time to file the paperwork.  The last five child custody factors are here at last so you can be fully aware of what the court will consider.

So far I’ve covered the factors that involve emotional ties between Tommy and his parents, ability to provide guidance, education, food, daily needs, how often mom or dad move around, moral fitness, and the mental and physical health of Tommy’s parents. 

The next factor in the “Best interests of the child” statute, MCL 722.23, is “The home, school, and community record of the child.”  The court wants to know how Tommy is doing in school, if he’s involved in the community (think Boy Scouts, sports, youth groups, neighborhood activities, etc.) and whether or not the potential custody dispute could impact those positive or negative ties.  Obviously if Tommy is hanging around a gang at school, failing classes and smoking things he shouldn’t be while living with mom, it may be time to consider a change.  If he’s doing well, getting 4.0s in all classes, participating successfully in basketball and track, how is the potential custody change going to impact this?  After all, you want him to get a full ride to college, don’t you?

“The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference,” is factor (i).  People are always curious as to what age triggers the court’s consideration of the child’s opinion, and there is no hard and fast rule to this.  I would say the average would be 12 years old, but I’ve seen judges swayed by children younger than this, and also rule against the preference of a much older child.  Most children under 10 don’t necessarily know what’s best for them, and we all know that teenagers ALWAYS know what’s best for them.  Just ask Miley Cyrus.

Mom and dad’s ability to get along is the subject of factor (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.”  Does mom talk smack about dad to Tommy?  Does dad refuse to let mom call and talk to Tommy when it’s his parenting time?  I’m not saying dad had to give Tommy $100 to buy his mom a Christmas gift, but he should encourage the relationship between mom and Tommy, and try to co-parent as much as possible.

If there’s been any abuse in the marriage or relationship, the court considers this in factor (i) – “Domestic violence, regardless of whether the violence was directed against or witnessed by the child.”  It’s never appropriate to physically abuse anyone and there is a high risk for the safety of the child if the parties have been violent with each other.  It’s called the “cycle of violence” because it is very difficult for people involved in the cycle to get out.  Note that the child does not have to be present during the violence, nor does he have to be a victim of it for the court to consider this factor.  Due to the fact that domestic violence is not always reported, when this subject is discussed, the other side is quick to deny the allegation and it is often a he said-she said situation without any documentation or witnesses.

The last factor is a catch-all, “Any other factor considered by the court to be relevant to a particular child custody dispute.”  If you think there is any other important information the court needs to know that doesn’t fall squarely into one of the other 11 factors, now’s the time to speak up.

As you can see, there are many considerations that the court needs to reflect on when awarding custody.  When I go over these factors with my clients, it often leads to a serious bash session about how horrible a person the significant other is, and we revisit every mistake that person has made in the last 15 years.  Don’t lose sight of heart of the matter – it’s the “Best Interests of the CHILD” statute – you know, Tommy.

Courtesy of Jackson County Legal News, January 19, 2012, Vol. 47, No. 30

Physical and mental health of the parties are a part of custody determination

Hopefully now that Halloween is well past us, you’ve chosen to substitute Tommy’s candy and pop addiction for fruit and milk.  You may think that a court doesn’t care about your or your child’s eating habits, but the physical health of the parties is one of the many factors that a court can consider when awarding custody in a divorce or a custody battle between unmarried parents.

Here’s a quick review of our examination of the “Best interests of the child” factors codified in MCL 722.23 – the first three factors focused on the emotional attachment between the child and his parents, the ability of the parties to guide and properly raise the child, and if they can provide day to day necessities and care.  The next factor is subsection (d), “The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.”  This factor looks to the past and how often the minor child has been with each parent, who has lived in the respective homes (do significant others move in and out as regularly as Lindsay Lohan violates probation?), is the home clean and safe, does Tommy have his own room and appropriate items, etc.

Factor (e) is “The permanence, as a family unit, of the existing or proposed custodial home or homes.”  Are mom and dad frequent flyers with U-Haul, moving from place to place due to eviction or relationship breakups, or have they stayed put for quite some time, with no move being anticipated in the future?  Children need a stable routine and a stable residence to come home to each day.  Try to keep your moves to a minimum (unless you’re on “Dancing With The Stars,” but that’s a whole different set of moves).

“The moral fitness of the parties involved” is another item up for custody consideration.  Does either party have a criminal record longer than the receipts on the television show “Extreme Couponing?”  Even if there is no actual conviction for a crime, is it well known that he or she likes to engage in a little weekend activity that stretches the definition of “recreational?”  The court wants to ensure that the children are raised by parents that attempt to instill good morals and ethics, not those who constantly end up on the wrong side of the law.

The next factor is definitely where I get the most humorous answers from clients when we review the statute for court – “The mental and physical health of the parties involved.”  It’s my understanding that almost everyone thinks their ex is crazy, but there are cases where one of the parties suffers from serious mental and emotional issues that he or she may or may not be receiving treatment for.  The courts will often order psychiatric evaluations, require counseling, and ensure that the individual is complying with treatment plans, including medication.

The remaining five factors are up for discussion in my January article.  Don’t miss it (or Tommy’s next dental check-up either – I’m sure there’s more than one cavity building thanks to the candy.)

Courtesy of Jackson County Legal News, 12/8/11, Vol. 47, No. 18