Michigan Child Custody Q & A (Questions & Answers) / FAQ (Frequently Asked Questions)
Do I need the judge’s permission to move my child out of state, if there is no custody order for my child?
The short answer is No. But, please be aware that if you have pending litigation regarding custody, you may want to speak to an attorney first. If the case is pending, the other parent, as well as, the judge may be upset that you have frustrated the other parent’s ability to see the child, or removed the child from the jurisdiction. Upsetting the parent or judge will not help your pending child custody case, and will complicate it even further. If, however, you are not married to the child’s father and the child is not acknowledged as the father on any legal documents or orders, you are free to move out of state.
Do I need the judge’s permission to move my child out of state, if there is a custody order for my child?
Yes, you do need the judge’s permission to move out of the state. You also need the judge’s approval to move 100 miles from the residence of the other parent, unless:
- You have sole legal custody
- The other parent agrees to the move (You should put the agreement in writing, signed by both parents)
- You stay 100 miles away from the other parent at the beginning of the custody case.
Because moving out of state and/or moving 100 miles away from the other parent can be highly prejudicial to your custody case, it is advised that you speak with an attorney about the matter.
I am going to jail or prison, what should I do about my children?
Going to jail or to prison does not automatically terminate your parental rights, but if you do not take certain actions to arrange for the care of your children – termination of your parental rights will happen. There are several things you should do before entering or while in jail/prison to protect your parental status. First, ask someone you trust to assume the care of your children, and file or draft the necessary legal paperwork to give the temporary parental figures legal authority over the children. If you are going to be in jail for one year or less, you should fill out a Parental Power of Attorney. The Parental Power of Attorney is the document that the person taking care of your children will use in order to enroll your children in school, or take them to the doctor. This document will allow the person caring for your child to have legal authority and responsibility over your children for a 6 month period. This 6 month period can be extended, but you must fill out another Parental Power of Attorney for another 6 month. Although, you don’t need to have this document notarized – it’s a good idea to have it notarized. Several copies of this document should be made, and distributed to anyone who may have an interest in the care of your children. You can find forms on michiganlegalhelp.org. Search for “parental power of attorney kit.” If the people that you are transferring the power to care for your children are relatives, you can use the website above to search for “kinship care kit.” The paperwork above will protect the person that is caring for your children, for situation that are less than a year. If you sentence is more than a year, you may have to select a person to petition for guardianship over the children. Guardianship is more formal and stable than a Power of Attorney, and requires a formal court proceeding to obtain- but, this may be necessary to avoid the placement of your children in foster care. For guardianship proceedings, it is advised that you hire an attorney to help you navigate through the process. You do not need legal paperwork or to establish a guardianship if: (1) if the other aren’t has custody; (2) you are the biological parent and unmarried, but have been caring for the children without a formal custody order; or (3) you are married.
What should I do to gain guardianship over a child?
There are two types of guardianship’s: limited guardianship and full guardianship. With limited guardianship the parents of a minor child petitions the court to suspend their parental rights. With a full guardianship, someone other than the parents of a minor child, petition for legal authority over a child’s affairs and the parents object to the guardianship. Most guardianship petitioned for are full guardianship’s and governed by the Estates and Protected Individuals Code (EPIC), section 5402(2).
A guardian may be appointed by the Probate Judge after a petition is filed with that court, but before the hearing is held. Court ordered guardianship usually happens in the following circumstances:
- When a previous or current guardian becomes incapacitated and can no longer care for the child;
- When there are no other persons that can act as guardians except the guardian the court appoints;
- The person was assigned as the guardian in a will, or other testamentary document; or
- If the current guardian breached a legal duty to the child.
In addition, before the proceeding, the probate court will appoint a “Guardian Ad Litem,” for the minor, unless the minor is represented by an attorney. A Guardian Ad Litem will explain certain things, including what is being requested in the petition, what will happen at the hearing, and protect the minor’s rights.
If the court does not appoint a guardian, then the one who petitions for guardianship may be considered for the appointment. The petition may be filed by anyone that has an interest in the child’s welfare. On the other hand, a limited guardianship may only be requested by the parent or parents of the minor child, who has custody over the child. For a limited guardianship, the court must approve a placement plan for the minor, including how long the guardianship is to last.
After the petition is filed, a hearing is scheduled promptly (in emergency cases, the petitioner may be able to have a guardian appointed before the hearing). The person who files the petition has the duty to notify all interested parties. Interested parties also include the child’s parents. The court will ultimately only choose the most qualified person for the role that will meet state standards. In determining the guardian, the courts will asses many different factors, such as:
- The mental and physical health and moral fitness of the potential guardian;
- The guardian’s ability to make sound decisions;
- Love, affection and other emotional ties between the potential guardian and the child;
- Whether the natural parents have opted to retain their parental rights over the child; or
- If the guardian will be able to care for the child based on any of the child’s needs or special characteristics.
In guardianship cases, if a party is incarcerated under the jurisdiction of the Michigan Department of Corrections, their name, address, and prison number must be listed on the petition.
On the date of the hearing, the judge listens to anyone who has an interest in the guardianship explain the need for one. The person who is appointed a guardian must then file an Acceptance of Appointment. After this document is filed, the court issues a Letter of Authority to the guardian. This letter is used to give the guardian the right to execute their duties.
My child’s mother/father has a PPO against me, how will that affect my parenting time?
Having a PPO should not affect your parenting time, unless, the PPO stated that you are not allowed to communicate with the child. But, you will run the risk of violating the PPO if you communicate with the other parent—which could result in jail time or fines. The PPO may state that you are prohibited from certain actions with the other parent, such as:
- Talking to the other parent, on the phone or in person
- Texting the other parent
- Sending letters to the other parent
- Emailing the other parent
If you are prohibited to interact with the other parent, you may need a third person to act as an intermediary between the two of you. This third person will be responsible for exchanging messages between you and the other parent, involved in pick up and drop off of the child for parenting time, and any other interaction that you are prohibited to do person to person with the other parent. If you are unable to find a third person who can help with the exchanges, contact the Friend of The Court. They may be able to suggest resources.
I want to modify my custody order. How does that work?
The courts will only modify or amend a custody order if there is proper cause or a change of circumstances from the original custody order. Secondly, it must be determined whether or not a custodial environment exists. A custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. Basically, if the child has stayed with you for a considerable amount of time and you have been the primary caregiver, then you have created a custodial environment. If a custodial environment exists, you may not modify or amend a custody order, unless you present clear and convincing evidence that the modification is in the best interest of the child. If a custodial environment does not exist, you only have to prove that the modification is in the best interest of the child through a ponderence of the evidence. Clear and convincing evidence is a higher evidentiary threshold than preponderance of the evidence. You are required to present more evidence under the clear and convincing burden of proof.
Once proper cause or change of circumstances has been found, and whether a custodial environment exist or not, the court applies several factors that demonstrate the best interest of the child. These factors are:
- Love, affection, and other emotional ties between the parties and the child;
- The ability of the parties to provide the child with love, affection, and guidance and to raise the child in his/her religion;
- The ability of the parties to provide the child with food, clothing, medical care, and material need;
- The time the child has lived in a stable environment and the desirability of maintaining continuity;
- The permanence of the custodial home;
- The mental and physical health and moral fitness of the parties;
- The child’s home, school, and community record;
- The child’s preference (if the court determines that the child is old enough to express one);
- The willingness and ability of each party to encourage a continuing relationship with the other parent; and
- Any domestic violence.
These factors are applied to the situation to ultimately determine whether the custody order will be modified. Since, there are three tests that you must go through, the help of a family attorney is crucial in obtaining the modification you desire.
The father/mother of my children will not let me see the kids, despite our visitation agreement. What should I do?
Court ordered child custody, support and visitation orders are legally binding. Violations of these orders result in sanctions being imposed on the violating parent. When issues concerning the parenting plan or visitation arise, they should always be addressed through the family court system – or the local law enforcement agency. The parent who feels that their visitation schedule is being compromised should seek the help a family law attorney in order to petition the court to have the visitation plan enforced or make changes to the parenting plan to better accommodate the parents needs. The severity of the withholding depends on the frequency and duration of the denial of parenting time. If the custodial and non-custodial parent cannot follow the parenting order as written, and this non-compliance happens infrequently, the parents can informally schedule make-up visitation times. However, if the custodial parent continuously withholds visitation and does not re-schedule make-up visitation, the custodial parent will be held in contempt of court. The court may eventually view this conduct as so detrimental to the child that it may consider changing custody. The impetus for such a change, however, is not to punish the custodial parent, but to foster the best interest of the child.
What does the court use to determine parenting time frequency, duration and type?
The state of Michigan has a strong policy to promote healthy family relationships between the child and his/her parents. When one parent is granted sole physical custody of the child, the other parent is granted reasonable visitation rights. In determining the parenting time (visitation) schedule, the court considers several factors:
- The existence of any special circumstances or needs of the child.
- Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.
- The reasonable likelihood of abuse or neglect of the child during parenting time.
- The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
- The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
- Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
- Whether a parent has frequently failed to exercise reasonable parenting time.
- The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.
- Any other relevant factors.
The court uses these factors to determine the type, duration and frequency of parenting time. If you are seeking a modification of parenting time, the court goes through a slightly different process. The courts will only modify or amend a visitation order if there is proper cause or a change of circumstances from the original visitation order. Secondly, it must be determined whether or not a custodial environment exists. A custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. Basically, if the child has stayed with you for a considerable amount of time and you have been the primary caregiver, then you have created a custodial environment. If a custodial environment exists, you may not modify or amend a visitation order, unless you present clear and convincing evidence that the modification is in the best interest of the child. If a custodial environment does not exist, you only have to prove that the modification is in the best interest of the child through a ponderence of the evidence. Clear and convincing evidence is a higher evidentiary threshold than preponderance of the evidence. You are required to present more evidence under the clear and convincing burden of proof. Only after the presence of a custodial environment is determined to exist or not, does the court consider the factors stated above, along with the best interests of the child factors in granting a modification of parenting time order.
Since, there are several tests that you must go through, the help of a family attorney is crucial in obtaining the modification you desire.
Does Michigan have the jurisdiction to hear my child custody case?
Michigan statutes determine which state has jurisdiction to hear child custody cases, if there is a question as to which state is appropriate to file a custody case. As between two states, the federal law, Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) controls.
The most important element in determining jurisdiction is the child’s “home state.” A child’s “home state” is the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than 6 months of age, the term means the state in which the child lived from birth with a parent or person acting as a parent. A period of temporary absence of a parent or person acting as a parent is included as part of the period.
If it is found that Michigan is the home state of the child, the Michigan family courts can enter or modify a visitation or child custody order. Also, if no other state has home state jurisdiction or the court of the home state has declined to assume jurisdiction because the forum is inconvenient, Michigan may assume jurisdiction if: (i) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and (ii) substantial evidence is available in the state concerning the child’s care, protection, training and personal relationship.
The “home state” and “significant connection” test are the two test used to determine jurisdiction over a child custody matter in the state of Michigan. It must be noted, the presumption that the mother has initial physical and legal custody under Michigan’s Acknowledgment of Parentage Act, does not hold true under the federal UCCJEA.
What is child custody?
There are two types of custody: legal custody and physical custody. Legal custody is the right for the parent to make major life decisions for the child. For example, what school the child attends, the medical care the child receives, etc. Physical custody is the right to have possession and control over the child. In other words, physical custody is who the child primarily resides with. When asking for child custody, a parent may ask for joint custody, this is where the physical, legal or both custody of the child is divided between the parents equally. Sole custody, legal or physical, is when one parent holds all of the rights, and the non-custodial parent receives parenting time and is ordered to pay child support.
I want to be able to visit my grandchildren, and the parent(s) are denying me visitation. Do I have rights?
A grandparent may be permitted to have vitiation or grand parenting time, under the following circumstances:
- The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled (or an action for divorce, separate maintenance, or annulment is pending before the court);
- The child’s parent, who is a child of the grandparent, is deceased;
- The child’s parents have never been married, they are not residing in the same house-hold, paternity has been established, the putative father has provided substantial and regular support or care for the child in accordance with the father’s ability to provide the support or care;
- Legal custody of the child has been given to a person other than the child’s parent, or the child does not reside in the home of a parent, unless the child is placed for adoption; or
- The grandparent provided an established custodial environment for the child whether or not the grandparent had custody under the court order.
There is a presumption that the parents’ decision to deny the grandparents visitation time does not create a substantial risk of harm to the child’s mental, physical, or emotional health. To rebut this presumption, the grandparent must show by a preponderance of the evidence that the parent’s decision to deny grand parenting time creates a substantial risk of harm to the child’s mental, physical or emotional health. If the presumption is rebutted by the grandparents, then the court takes into consideration the best interest of the child factors:
- The love, affection, and other emotional ties existing between the grandparent and the child;
- The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparents;
- The grandparent’s moral fitness;
- The grandparent’s mental and physical health;
- The child’s reasonable preference, if the court considers the child to be sufficient age to express a preference;
- The effect on the child of hostility between the grandparents and the parent;
- The willingness of the grandparent, except in the case of abuse and neglect, to encourage a close relationship between the child and the parent(s);
- Any history of the grandparent’s physical, emotional, or sexual abuse or neglect of any child;
- Whether the parent’s decision to deny grandparent time is related to the child’s well-being or is for some other related reason; and
- Any other factor relevant to the physical and psychological well-being of the child.
I want joint custody. How does the judge make his/her decision on joint custody?
There are two types of custody: legal custody and physical custody. Legal custody is the right for the parent to make major life decisions for the child. For example, what school the child attends, the medical care the child receives, etc. Physical custody is the right to have possession and control over the child. In other words, physical custody is who the child primarily resides with. When asking for child custody, a parent may ask for joint custody, this is where the physical, legal or both custody of the child is divided between the parents equally. Michigan statutes create the presumption that joint custody is favored and encourages the award of joint custody to the parties. However, if the parties are so hostile towards one another that they are unable to collaborate on making decisions for the child, the court will not award joint custody to two hostile parties.
There are several factors that the court examines when awarding joint custody to the parties:
- The fitness of both parents;
- Whether the parents agree on joint custody;
- The parent’s ability to communicate and cooperate concerning the child’s well-being;
- The child’s preference;
- The level of involvement of both parties in the child’s life (i.e. whether one parent was the primary caregiver);
- The geographical proximity of the two houses;
- The similarity or dissimilarity of the two homes;
- The effect of the joint custody owed on the child’s psychological development; and
- The parents’ ability to physically carry out the joint custody order.
In sum, the courts will generally award joint custody if both parties agree to the arrangement, unless the court finds that awarding joint custody is not in the best interest of the child.
