Should Your Custody Order Include a Joint Physical Custody Award?

Sometimes labels can make things hard. When two good parents disagree over what is best for their child, a joint physical custody label can sometimes make the pill harder to swallow. But can you forget about the label and just lay out parenting time in your custody order? One Michigan Court of Appeals says no.

Michigan Child Custody Act Missing Physical Custody Label

There is a trend in Michigan family law away from the label of physical custody. Many family law judges and lawyers see the award of physical custody as unnecessarily increasing the tension in a case by labeling, or refusing to label, one parent as the “primary” custodian of the child. To avoid this, many custody orders forego the joint physical custody award altogether. Instead, they simply list legal custody (decision-making about the child) and then outline the parties’ parenting time arrangement.

This is supported by the Michigan Child Custody Act (MCL 722.21 et seq.). The law allows family law judges to “award the custody of a child” to one or more parent and to “provide for reasonable parenting time.” (MCL 722.27) In that sense, the Child Custody Act never distinguishes between “legal custody” — the ability to make decisions for the child’s care — and “physical custody” — directing where and with whom the child will live. Because of this, some judges and attorneys are simply foregoing the physical custody label and awarding joint custody (meaning decision-making) and parenting time.

Joint Custody Statute Puts Physical Custody Back into Question

However, the law also allows either parent to request “joint custody.” (MCL 722.26a) That is defined as one or more of the following:

(a) That the child shall reside alternately for specific periods with each of the parents.

(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.

So when a parent requests, or a court orders joint custody, that can mean either legal custody or physical custody (or both). If a party requests joint custody under this section of the statute, judges are required to find whether that is in the best interests of the child using the Best Interest Factors (MCL 722.23). Different factors apply if the court is simply allocating parenting time. (MCL 722.27a) The language of MCL 722.26a, together with the two different sections for determining custody and parenting time suggest that where either party requests joint custody, the court needs to include a joint physical custody award in its custody order.

Michigan Court of Appeals SendS Case Back for Physical Custody Award

That reading of the Child Custody Act is supported by the recent unpublished opinion in Derkin v Tersigni (Docket No. 342850, October 23, 2018). In that case, a biological father sought a determination of paternity and joint physical custody of his child after the mother’s ex-husband completed a Revocation of Paternity action. Mom, who had raised the child for two years before the case began, wanted sole custody and limited parenting time for dad. After hearing all the evidence, the court went through each of the 12 Best Interest Factors, and then awarded the parties joint legal custody and a parenting-time schedule that increased over time up to a 50/50 split.

The Court of Appeals said the trial court did everything right except it forgot to include a physical custody award in its final parenting time order. The court said the proper process for modifying the custody order contained in the mother’s divorce decree was:

  1. Determine if there was an established custodial environment (here with mom)
  2. Set the burden of proof based on whether the request would change the established custodial environment (here it did, so the burden is clear and convincing evidence)
  3. Determine if the modification is in the child’s best interest using the factors in MCL 722.23
  4. Then determine the appropriate parenting time arrangement using the factors in MCL 722.27a

After reviewing the facts, the Court of Appeals sent the case back to the trial court with one simple instruction: add a joint physical custody award to the custody order.

Will Courts Go Back to Adding Joint Physical Custody Awards?

The Derkin decision is “unpublished”, meaning other judges aren’t required to follow its rulings. It is possible that judges across Michigan will disregard the need for a joint physical custody label and continue to just award parenting time. But if Derkin shows anything, it is the importance of reading all the parts of a statute before deciding to skip any part of the process.

Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps parents obtain custody orders in the best interests of their children. If you need help establishing paternity or finalizing a custody order, contact Schmidt & Long today for a consultation.