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

Factors used by the courts in determining child custody: Part One

If you have children, they are going to be the most important aspect of your divorce (unless you’re parenting a la Darth Vader).  The court has to use a specific set of factors to determine custody, which are set forth in Michigan’s “Best interests of the child” statute – MCL 722.23.  There are 12 total factors that I will discuss here and over the next coming articles.

It’s important to distinguish between the two types of custody – legal and physical.  Legal custody pertains to which parent can make and participate in the important life decisions of the child – education, medical, religious upbringing and the like.  It does not include things like whether or not your child can have Butterfingers® and Mountain Dew® immediately before you turn him over to your ex for parenting time. 

Legal custody can be either sole, where only one parent makes the decision, or joint, where the parents share in the choices for their child.  I would venture that joint legal custody triumphs in 95% of all cases end, as most parents can communicate well enough to be involved in their child’s important life decisions.

Physical custody refers to which parent has the child in her or his physical care the majority of the time.  It is also either sole, where one parent has the child most of the time, and the other typically has mid-week and weekend visits, or joint, where the parents share an equal or approximately equal parenting time schedule.  Since your parenting time is what actually controls when you see your children, the terminology for sole or joint physical custody often has more of an emotional or implied meaning rather than actually affecting how much the children are in your care.

All of that being said, the first factor is “The love, affection, and other emotional ties existing between the parties involved and the child.”  This refers to which parent the child is attached to emotionally – who does Tommy look to when he is hurt, go to when he cries (besides grandma).  Most of the time this factor is equal for both parents, but of course when divorcing some couples feel the need to “one-up” the other and act like the child only seeks mom or dad’s attention.  Kind of like the person in dog obedience class that puts bacon grease on his fingers so that the dog worships him and it appears as if that person has mad training skills.  (I’ve seen it happen people – such a disgrace).

The second factor is “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 plays off the first and looks at whether or not each parent exercises proper discipline and parenting skills, encourages and assists them in school and religious upbringing if applicable.  Among other things, the court can consider if parents use corporal punishment (i.e. spanking), time outs, or other types of child-rearing techniques; how they show the child love (hugs, telling him); if the parents have high school degrees, post-secondary/graduate education, attend parent-teacher conferences and if either parent is religious or attends church.

Factor three is “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.”  I find that parents really enjoy bashing each other with this category, claiming “I carry the health insurance and pay for it,” or “He doesn’t even know the name of the doctor, let alone when Tommy’s due for vaccinations.”  (HINT – it’s not always every three years like Fido’s rabies shot.  On the plus side, you don’t have to license your children).

Employment is obviously a heavy hitter in this factor, because if you don’t have a job it makes it very difficult to provide your child with day-to-day necessities.  In this economy, as long as you’re trying to gain employment and don’t have a pattern of being jobless, this factor won’t be too damaging if you’re unemployed.

Stay tuned for the rest of the child custody factors, and in the meantime, please swap out Tommy’s Mountain Dew® for water.

Courtesy of Jackson County Legal News, 11/14/11, Vol. 47, No. 11

The third and final hearing - The Divorce Trial

The divorce trial is your swan song – the final culmination of what you’ve been fighting for all these months.  Despite valiant efforts, you can’t reach a total agreement with your spouse – maybe you’ve agreed on some but not all of the issues, or perhaps everything is up for grabs.

Most divorce attorneys will recommend that you settle your case if you can – regardless of the judge’s reputation and skill, the truth is the judge barely knows you and will most likely only listen to your arguments for a few hours.  In my opinion and experience, the majority of divorce cases settle (I’ve heard a statistic that as high as 97% of divorce cases resolve without a trial).  Do whatever you can to minimize the outstanding disputes in your divorce, as this will lessen the number of issues the judge has to resolve as well as reduce your attorney fees and court costs.  If you can settle some or all of the property issues – who gets the house and cars, how the financial assets (bank accounts, retirement, non-retirement investment accounts, etc.) are going to be divided – you can put an agreement on the record as to those specific items and go to trial over the rest.  In doing so, you’re left with a smaller portion of your estate to wage battle over.

Custody, parenting time and child support are the most common deal breakers in a divorce case, and rightfully so – the time you spend with your children is priceless and it should be the paramount issue in your matter.  Stay tuned for future articles that will discuss the “Best Interest Factors” that the court has to consider when making a custody ruling.

During the trial, you get to call the witnesses that you listed on your previously filed witness list, and your spouse is able to do the same with his.  Both attorneys can cross-examine the other spouse’s witnesses, mitigating any damage that person created, or call a rebuttal witness to challenge what an earlier witness testified to.  The parties themselves are the most important of those called, and hopefully your testimony as well as those of your supporting witnesses will make your argument favorable to the judge.

It’s important to listen to all of your attorney’s prep tips for your testimony – wear appropriate clothing (courtroom appropriate, not Saturday night bar hopping appropriate), answer questions honestly and concisely, and don’t be afraid to say you don’t know the answer to a question or that you can’t remember the answer.  If you don’t understand the question, then ask for it to be rephrased in a way so you can better know what is being asked of you.  Control your emotions and behavior as much as possible – no eye rolling or snarky remarks.  No matter what the facts, you certainly do not want the judge to see you as an “unlikeable” person with a vendetta against your spouse.

Exhibits are used to buttress your argument or perhaps impeach something your spouse testified to (although I’m sure he legitimately forgot that he withdrew $20,000 in marital funds the day before he filed for divorce).  The attorneys make closing arguments to solidify your position and then…you wait.

Don’t expect the judge to make a same-day decision, although sometimes that does happen.  It’s more likely that the judge will take it under advisement where you will wait a couple of weeks before he calls the attorneys to a hearing to issue his ruling, and some judges submit a written opinion that is shipped out to both attorneys after the trial.  You can appeal a judge’s ruling, but most parties don’t have the resources or time to do so and stick with what the judge decided, even if they do not believe they came out on top.

You’re never going to be completely happy with the outcome of your divorce, but the more control you maintain over it the more likely you’re going to be able to live with the final decision.  Settle what you can, take the rest to trial and listen to your attorney’s advice for what to do – and save the debut of the little black dress that screams “I’M SINGLE!” for after court.

Courtesy of Jackson County Legal News, 10/17/11, Vol. 47, No. 89

Hilarious You Tube Divorce Dance

Check out this link to a hilarious You Tube video - this is what we all wish court was like!

http://www.youtube.com/watch?v=zbr2ao86ww0&feature=youtube_gdata_player

Pre-trial: No. 2 of the 3 hearings you're likely to attend in a divorce

A pre-trial is the step before your divorce trial, and in most cases, I think clients will find the hearing itself to be pretty anticlimactic, especially when compared to drama-laden courthouse scenes from TV.  Thankfully, most pre-trials are not set as early as Conciliation, and depending on the judge assigned to your case, you may or may not be required to attend.

Pre-trials are useful to keep the case on track and provide an update to the judge as to how the case is coming along – are you likely to settle, need to go to trial, explore mediation possibilities, etc.  Most judges are open to discussing particulars with the parties’ attorneys in chambers at the pre-trial – your attorney can run an issue by the judge, briefly present his side while your soon-to-be ex’s counsel presents his position, and the judge will often give an indication of how he or she may rule if the issue were to go to trial.  This saves an enormous amount of time and money as the attorneys can take this “draft ruling” back to the clients and suggest that they settle or negotiate towards how the judge was leaning.

In many cases, witness and/or exhibit lists are exchanged before or at the pre-trial.  The witness list contains the names of potential people you’d call to support your side of the story if you were to go to trial.  This typically includes both parties, relatives, friends, the children, records keepers and experts to round it out.  By providing these documents to the opposing party, you get a sneak-peek of what the other side’s game plan is.  There are many times when I receive a witness list and don’t know who some of the people on the list are.  Once I ask my client, I routinely receive the response of “I can’t believe he’s calling her as a witness!  I know what he’s up to!”  or “Oh no, how did he find out about him???” (You’d be surprised how many times attorneys don’t know what people are up to.  It’s probably because people are less than forthcoming about the truth, the whole truth, and nothing but the truth, so help me God kind of stuff.)

Exhibit lists typically contain the documents that the parties want to present to the court to support their side and explain and/or value the property involved in the marital estate.  Most of the time the exhibits that are going to be used have already been exchanged between the parties during the discovery period of the divorce, so there are less surprises on the list.

If the parties and their attorneys are available to stick around after the pre-trial, negotiations can occur and if an agreement is reached as to all issues, the agreement can be placed on the record in court and the parties are then bound by those terms.  This agreement is drafted into the final Judgment of Divorce and the parties avoid going to trial, saving everyone time and money.

So, in summary, don’t be afraid of the pre-trial despite the fact that it has the nasty word “trial” in it.  It’s a lot more work for your attorney than you, and many times the parties make significant headway towards settling the matter, which benefits everyone.  You probably won’t even have to set your alarm as early as you would for Conciliation.  Nothing should really occur before 10 am anyways.

Courtesy of Jackson County Legal News, 9/12/11, Vol. 47, No. 79

First stop on the road to divorce: FOC Conciliation Hearing

Over the next few articles I am going to discuss the top three most common hearings that occur during a divorce action.  Motions come up here and there, but these three things will be faithfully set in each and every case.  Attending them may or may not be necessary, but chances are good you’ll go to at least one of them.  The first one is the subject of this article – Friend of the Court Conciliation hearing.

When you file a divorce action that involves minor children, you have to wait a minimum of six months before the court will divorce you.  There are exceptions to this rule, but the chances of you being divorced in less than six months are about as good as my husband magically turning into David Beckham (or, in his opinion, me turning into Faith Hill).  As one would imagine, a lot of parties separate before or during the divorce action, and they want to have a laid-out plan for when they see their kids.  In order to speed this process along, the Friend of the Court in Jackson County sets a meeting called Conciliation.  The purpose is to lay out the basics when it comes to the kids while the divorce is pending.  Five topics are discussed at Conciliation – custody (both legal and physical), parenting time (who has the kids when), child support (who pays who and in what amount), child care contribution and health care contribution (both factored into child support). 

A lot of attorneys I know are split on whether or not to attend Conciliation with their clients.  Because it results in a recommendation for a court order, some consider it crucial to be there.  If I do go, most of the time I end up sitting there like a bump on a log as the Conciliator really just wants to hear from the clients and not from the attorneys.  However, if the client feels better with me present, or if opposing counsel is attending, I will gladly go.  It obviously saves the client moolah if I do not attend.  If she feels comfortable handling the matter on her own, then I’d rather sleep in (a lot of these hearings occur at 8 am and I live an hour from work.  Beauty sleep is important you know.  That’s the only way I’m going to wind up looking like Faith.)

The child support factors, including child care and health care are fairly straight-forward – the Conciliator takes a look at each party’s income, tax status and exemptions, and health care available through employers, and plugs that information into the computer program which magically spits out a number for one party to pay the other.  Unreimbursed health care costs for the kids are also divided between the parties based on the abracadabra method as well.

Custody and parenting time is where it can get brutal.  The Conciliator is supposed to take a look at the 12 factors outlined in the Best Interests of the Child statute, MCL 722.23, consider each party’s strengths and weaknesses, and make a determination in the child’s best interest as to which parent should have custody (or shared custody), as well as the days and times the child spends with each of her parents.  Most of the cases end up with joint legal custody, meaning that both parties have the right to participate in the important life decisions that come up in the child’s life – education, medical, religious upbringing, etc. 

Physical custody can either be sole or joint – sole is when one parent has the child in his or her care most of the time, and the other parent has weekend visitations and perhaps a mid-week visit.  Joint physical custody is when the parties have an equal or approximately equal parenting time schedule and share roughly the same amount of time with the kids.

Because parenting time overnights are considered in the child support formula, you hear all sorts of accusations that he only wants joint physical custody so that he doesn’t have to pay oodles of child support to the other parent, or if he has to pay full guideline amount he’s going to default on the mortgage, she leaves him no choice…it honestly sounds like a broken record after a while, similar to how the radio stations ruin good songs by playing them once an hour, every hour, every day.

If the parties can reach an agreement on the five Conciliation issues on their own, the Conciliator can draw that up and have everyone sign right then and there.  The attorneys can also prepare the paperwork, but surprisingly, when the clients hear it’s free for the Friend of the Court to do so, they tend to like that option better.  If the parties still live together, they may choose to reserve the issues until they separate.

Sometimes you can’t reach an agreement if your life depended on it, and the Conciliator makes his or her own recommendation and proposed order on the issues presented and submits it to the parties and the court.  If you don’t like what the Conciliator has to say, you can object to it within 21 days after service of the recommendation and order.  Then the court can decide what stays and what goes.

If possible, I think it’s better to try to reach an agreement instead of leaving it in the hands of someone who only meets you for a couple of hours.  You and your spouse should know what’s best for the kids, but spite and otherwise unfriendly emotions that crop up during divorce can alter one’s perception substantially.  Focus on the kids and the clean slate for the future – not on the old dirty laundry.

Courtesy of Jackson County Legal News, 8/18/11, Vol. 47, No. 72