CUSTODY AND PARENTING TIME ISSUES

  What do the different terms regarding custody meant?      Below you will find a brief description of custody arrangements. 

A number of custody arrangements are possible. The most common are:

-JOINT LEGAL CUSTODY-  Means that parents will communicate and cooperate with one another and attempt to reach mutual decisions regarding major issues affecting their children. This decision making process includes, but is not limited to major medical decisions, educational decisions, and religious upbringing, if any.

- JOINT PHYSICAL CUSTODY- Means that children live with one parent part of the time and the other parent part of the time. This time does not have to be equal. The parent who has care of the children at any given time is responsible for routine decisions regarding the children.

-PRIMARY PHYSICAL CUSTODY-  Means that the children live primarily with one parent.

-SOLE LEGAL & PHYSICAL CUSTODY-   Means that the children live with only one parent and that parent is responsible for making all major decisions regarding the children. This does not mean that the other parent does not have parenting time, unless unusual circumstances prevent this by court order.

~Q~       At what age is a child able to decide where they want to live  AND does the parent that has custody make the final decision of whether that child can move in with the other parent?  If the child lives a long distance away, how can the child make his decision known to the proper authorities without the custodial parent interfering?

~A~        In Michigan, the parent with primary physical custody would be the one to make the decision as to where a minor child lives, and the age of majority is 18 years. While the child’s wishes are a factor considered by the court when a custody issue is before the court, this is only one of many factors, which are considered in making a decision as to which parent is granted custody of the child.  There is no “magic” age when a child can decide with whom he/she wants to live and it is inappropriate (no matter what age the child may be) for them to contact the Friend of the Court regarding issues of this nature.  That is a parent’s responsibility, not the child’s.   Parents may file a petition or motion to modify custody through a private attorney or acting as their own attorney (In Pro Per) and can secure a Motion to Change Custody forms from the Friend of the Court-required filing fees are required.  

~Q~        What is the law regarding a parent’s right to access certain records or information about his or her child regardless of the custody arrangement? 

~A~        Michigan law regarding your inquiry: 722.30 Access to records or information by noncustodial parent. Sec. 10. Notwithstanding any other provision of law, a parent shall not be denied access to records or information concerning his or her child because the parent is not the child’s custodial parent, unless the parent is prohibited from having access to the records or information by a protective order. As used in this section, "records or information" includes, but is not limited to, medical, dental, and school records, day care provider’s records, and notification of meetings regarding the child’s education. 

 ~Q~        What may the custodial parent do if the parent feels a child may be at risk because of parenting time at the residence of non custodial parent?

~A~        In cases like this, where the custodial parent truly believes the child is at risk, they should petition the Court for a suspension of parenting time.  It is likely that the Court would direct the Friend of the Court to conduct a parenting time investigation or at least an inquiry, which would likely include a home inspection. Should the living arrangements not be suitable for example, for overnight parenting time, the Court may order a suspension of overnights until adequate living arrangements are available.  If a parent denies parenting time under a current order, that parent runs the risk that the other parent will file a complaint and the custodial parent would be required to appear and show cause why they should not be held in contempt for violating of the parenting time order.  [The burden would then be on the custodial parent to show the court that your action was in the best interest of the children -- safety, etc.]  In some instances where the risks to the child are of an extreme nature, contacting your local Children’s Protective Services department might be an appropriate step in conjunction with filing a petition or motion to suspend or change parenting time.

~Q~        How can I get parenting time once paternity is established?

~A~        In Michigan, the law presumes that it is in a child’s best interest to enjoy parenting time with both parents.  This presumption can only be rebutted by clear and convincing evidence. Courts decide parenting time issues consistent with the best interest of the child.  The Michigan Child Custody Act sets forth the criteria that the court will utilize in making such a determination.  The Friend of the Court Act was amended to require FOC offices to make available form motions, notices of hearings, orders, and instructions to help parties obtain changes in their custody and parenting time orders without the assistance of an attorney.  I would respectfully recommend that you contact your local FOC office and requests the Pro Per/Pro Se modification forms.  Having advised you of the above it would be suggested that you first contact an attorney in your area that specializes in the area of Family Law.  Modification of custody and parenting time is a very involved and at times complicated legal process.  Should you decide to proceed on your own, unless you are well versed in the area of the law, you may experience some challenges at time of hearing.  Your local bar or the State Bar of Michigan can provide you with the names of a number of attorneys in your area that specialize in the practice of Family law.

 ~Q~        Is there an age when minors can decide their own parenting time?

~A~        In Michigan, while courts are required to resolve issues of parenting time consistent with the best interest of the child, this should not be confused as being the equivalent of the child being able to make such decisions even as the child advances in age.  The preference and desire of a child is but one of a number of factors that the court must consider when resolving such matters. Typically, as a child advances in age, his/her needs in terms of social, emotional, and intellectual development change.  The parents are encouraged to communicate effectively with the other parent to work out an amicable solution.  Absent an amicable solution and if the current orders are interfering with this development, then a parent would be advised to seek the advice of an attorney to file a motion and have a hearing scheduled to modify the parenting portion of your order.  As indicated previously, you may research on how to file a motion with the court and act as your own attorney.  The Friend of the Court does have form motions available for this purpose and there are required filing and court fees associated with this.  If a motion is filed and there is a hearing, the court may consider modifying orders consistent with the best interest of the child.  The law presumes that it is in a child’s best interest to have substantial and meaningful contact with both parents.  This presumption can only be rebutted by clear and convincing evidence.  Friend of the Court personnel are prohibited by law from assisting you with filing your motions.

 

~Q~        What steps must I take to enjoy parenting time if the custodial parent will not allow it, and we have no specific schedule?

 

~A~        If the parenting time provisions of your Order state that parenting time for the noncustodial party shall be only ‘as agreed to’ and the parties are not in agreement, a motion must be filed to specify a specific parenting time schedule. A parenting time affidavit will not suffice, though an agreement/stipulated motion process (motion/filing fee required) can be facilitated by professional staff at the Friend of the Court Office.

 

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