The 3 Most Misunderstood Child Custody Best Interest Factors

Child Custody cases in Michigan are based almost entirely on 12 Best Interest Factors that guide judges in deciding what is best for a couple’s children. Some of these are very straight forward. But 3 of these factors are often misunderstood. And that can lead to problems between client and lawyer, and in court.

Michigan Child Custody Decisions Depend on 12 Best Interest Factors

The Michigan Child Custody Act requires judges in every child custody, paternity, and divorce case to individually weigh 12 Best Interest Factors in deciding what custody and parenting time arrangement will be best for the children in the case. When couples agree on a schedule, this evaluation is easy. The judge generally asks each parent if he or she believes the arrangement is in the best interests of the children, and when they say yes, signs off on the proposed child custody order. But when parents disagree, the judge must consider:

  1. The love, affection, and other emotional ties between parent and child.
  2. Each parent’s capacity and disposition to guide the child in education and religion (if any).
  3. Each parent’s ability and willingness to provide for the child’s physical and medical needs.
  4. The child’s existing living environment.
  5. The permanence of each parent’s home and family.
  6. The moral fitness of each parent as it relates to caring for the child.
  7. The mental and physical health of each parent as it relates to caring for the child.
  8. The home, school, and community record of the child.
  9. The child’s reasonable preference (if old enough).
  10. Each parent’s willingness to encourage a relationship between the child and the other parent (other than in cases of domestic violence or sexual assault).
  11. Domestic violence.
  12. Any other factor relevant to the child’s circumstances.

Some of these factors are obvious — such as the effect of domestic violence in a custody decision. Others take a little explaining — like a parent’s willingness to encourage the other parent’s relationship with a child. But there are 3 factors that are almost always misunderstood.

9. The Child’s Reasonable Preference

When a child is old enough to have a reasonable preference, the court is required to take that opinion into consideration. Many mothers and fathers believe that this means (1) their children will have to testify in court or (2) their children’s wishes will decide the case. Neither is true.

First, the court does not need to consider the opinions of young children. There is no hard cut-off of how old is old enough. Judges have talked to children as young as 6, but they don’t have to if a child is not deemed old enough, and mature enough, to have a reasonable preference.

Children, even teenagers, in a divorce or custody action are almost never put on the stand to testify. Instead, the judge or a Friend of the Court investigator will hold an “in camera” interview with the child. This is a casual conversation, often in the judge’s office (called chambers), where the judge or investigator talks to the children about living with each parent, which they prefer, and why. Parents and their attorneys never get to find out the content of that interview, only that it is being considered. And children are told they do not have to tell their parents what they said in the meeting. That way they don’t feel forced to side with mom or dad against the other parent.

Even when a child has a strong preference to live with one parent over the other, the court will consider why that is. Often, children will want to live with the more permissive parent when the disciplinarian is better able to guide the child’s education and upbringing. In other cases, one parent may have coached the child to say bad things about the other parent. In these cases, the other 11 factors may well outweigh the child’s reasonable preference.

2. Parents’ Ability and Willingness to Provide for Children’s Needs

When parents in a child custody action hear that the court is going to consider their ability to provide for their children’s needs, they often think this means who can better pay for school supplies or medical expenses. A parent’s income is part of this factor. If a parent is willfully unemployed, or so destitute that it creates housing or food insecurity, that will be considered. However, if a reasonable child support award will give a parent the financial means to provide for food and shelter, that can offset the simple question of who makes more. A judge is not interested in making parents pay for their children. Instead, this factor looks for who is available and willing to do the shopping, and makes sure the children have what they need to thrive, regardless of where the money comes from.

6. & 7. The Moral, Physical, and Mental Fitness of Parents

These two factors run into the same misunderstanding. Parents see these factors on the list and think it is time to bring out all the dirty laundry they have on one another. Moral fitness gives them an excuse to talk about affairs. Mental health lets them talk about the other parent’s anger issues. And these things can sometimes be relevant.

However, a parent’s physical, mental, or moral fitness is only ever considered to the extent it impacts the parent’s ability to be a parent. In other words, if Mom goes out drinking with her friends during Dad’s parenting time, or Dad pays child support and then spends all the rest of his money on gambling, the court isn’t going to care. Unless you and your family law attorney can connect the other parent’s moral shortcomings with their ability to raise the children, they aren’t going to help you win your custody battle.

Also, just having a physical or mental disability does not qualify a person from being a parent. If a father is managing his depression with medication, or a mother has a caregiver who can chase after the child on her behalf and keep the child out of danger, the fact that they need these accommodations will not weigh against them in the consideration of the child’s best interests.

Child custody disputes, by their nature, involve a wide variety of facts and circumstances. But that doesn’t mean everything is relevant or will be weighed the same by a judge. Make sure you sit down with your attorney and consider all 12 Best Interest Factors, so you know what to expect if you have to prove your case in front of the judge.

Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps parents with divorce and child custody disputes. If you need help understanding or proving the 12 Best Interest Factors, contact Schmidt & Long today to schedule a consultation.