Custody, parenting time (previously referred to as visitation) and support are three main areas of concern to the court. It is important to realize that these three issues can always be reviewed by the court upon request by either party. This includes after the judgment of divorce has been entered.
There are two types of custody, legal and physical. Legal custody concerns the decision making of the health, care, welfare, education, etc. of the child. This type of custody is almost always joint because the courts and judges want both parties to be involved in making these decisions in regard to minor children. Physical custody is where the children reside the majority of the time. Physical custody can be sole, joint, or split.
It should be noted here that children born out of wedlock, meaning between parties who are unmarried, is a completely different situation. This issue will be addressed later in the section entitled Paternity/Children Born From An Unmarried Couple.
Sole physical custody awards one party physical custody and the other party reasonable parenting time.
In joint custody situations each party shares physical custody of the children. In a pure joint physical custody arrangement each party would have the children for 182.5 overnights per year. This usually is not a feasible arrangement especially when the children become older. It usually is not feasible because of logistics and schooling. Many times the parties call the situation joint but it really is no different than sole physical with reasonable parenting time. Other times it is called joint physical custody and one party will have more liberal parenting time. This more liberal parenting time can be considered every weekend rather than every other. Regardless, a joint custody arrangement can be agreed upon by the parties with multiple parenting time options.
Split custody splits the custody of siblings between two parents. This is generally looked on with disfavor. The reason it is looked upon with disfavor is because it is thought that it is in the best interest of minor children to live and be together.
If the parties cannot agree on custody of the minor children then the FOC and/or court must get involved. Initially the FOC must conduct a complete investigation. During the investigation process, the FOC will interview the parties, review any documentation, interview the children and look at any other information which may be deemed relevant. After completing this investigation the FOC will then prepare a report and recommendation as to custody. In Michigan, the FOC and Court must determine what the “best interests of the child” is when deciding custody of a minor child. The best interests of the child are measured through a law which mandates that the following factors are to be used by the judge:
After the FOC completes their report and recommendation then the parties have various options. If the parties agree with the recommendation and all other issues are resolved they can enter into a judgment of divorce incorporating the recommendation. If the parties cannot agree then the matter must go to mediation, arbitration or trial. At trial, the judge must also use the above factors in determining the best interest of the minor children. Another option short of going to trial is to have a binding evidentiary hearing before a FOC Referee. Usually this is done if the only issue is custody and the parties desire to have the matter decided in a quicker fashion.
Michigan has a Child Support Guideline Manual which the Friend of the Court uses to recommend child support in Divorce cases. One of the key factors in the Guidelines is the “net income” of the non-custodial parent. Income includes not only base wages received from employment, but also includes such things as overtime, shift premiums, cost of living allowances, bonuses, annuities, certain dividends and even gambling winnings. The Guidelines also look as such things as second families, step children, health of the children, and child care expenses. The Guidelines are somewhat complicated and quite lengthy, but they are clearly used as a standard for setting child support by most Circuit Judges. The guidelines add up the total amount of “family income”, computes child support on the whole, assign a percentage to each contributing parent, and then requires the custodial parent to pay their percentage to the non-custodial parent.
In dealing with the issue of support other incidental issues are also dealt with by the FOC. These include medical coverage, out of pocket medical expenses and child care.
It should be noted that the manner of calculating child support has recently been changed. The changes are numerous but some of the highlights include calculating support on a monthly rather than weekly basis. Also, the actual overnight parenting time that the paying party has is a significant factor in determining the amount of support. An individual who was under a previous FOC support order should now seriously consider to have the FOC review the amount of support being paid because it may be significantly reduced with the new FOC guidelines.
Parenting time (visitation) between the minor children and the non-custodial parent is also primarily based on what the Court believes is in the best interests of the minor children. The amount of parenting time can often vary and is dependant upon the judge. However, unless there are unusual circumstances, most non-custodial parents can expect to have parenting time with their children on alternate weekends, one evening each week, alternate holidays, and for an extended period in the summer vacation, usually four to six weeks non consecutive.
The following is the standard parenting time schedule used by the Macomb County Friend of the Court. Note that each county’s or individual judge’s schedule may be different but in whole it is primarily the same.
(2) Father will have the following holidays in all even-numbered years and other will have these holidays in all odd-numbered years:
Continue reading: The Divorce Process – Part III: Property division
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We are in court daily, working with the family court judges, their staff and clerks, the Friend of the Court office, the Bar Association and other attorneys working in this area. We pride ourselves on fighting hard for our clients while working well with everyone.
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