COMMENTARY: Child custody factors--conclusion

Bay Marie E. Matyjaszek The holidays have come and gone, and perhaps the reconciliation attempts for your marriage or relationship are no longer successful. You held out for your presents, and now it's time to file the paperwork. The last five child custody factors are here at last so you can be fully aware of what the court will consider. So far I've covered the factors that involve emotional ties between Tommy and his parents, ability to provide guidance, education, food, daily needs, how often mom or dad move around, moral fitness, and the mental and physical health of Tommy's parents. The next factor in the "Best interests of the child" statute, MCL 722.23, is "The home, school, and community record of the child." The court wants to know how Tommy is doing in school, if he's involved in the community (think Boy Scouts, sports, youth groups, neighborhood activities, etc.) and whether or not the potential custody dispute could impact those positive or negative ties. Obviously if Tommy is hanging around a gang at school, failing classes and smoking things he shouldn't be while living with mom, it may be time to consider a change. If he's doing well, getting 4.0s in all classes, participating successfully in basketball and track, how is the potential custody change going to impact this? After all, you want him to get a full ride to college, don't you? "The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference," is factor (i). People are always curious as to what age triggers the court's consideration of the child's opinion, and there is no hard and fast rule to this. I would say the average would be 12 years old, but I've seen judges swayed by children younger than this, and also rule against the preference of a much older child. Most children under 10 don't necessarily know what's best for them, and we all know that teenagers ALWAYS know what's best for them. Just ask Miley Cyrus. Mom and dad's ability to get along is the subject of factor (j)--"The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents." Does mom talk smack about dad to Tommy? Does dad refuse to let mom call and talk to Tommy when it's his parenting time? I'm not saying dad had to give Tommy $100 to buy his mom a Christmas gift, but he should encourage the relationship between mom and Tommy, and try to co-parent as much as possible. If there's been any abuse in the marriage or relationship, the court considers this in factor (i)--"Domestic violence, regardless of whether the violence was directed against or witnessed by the child." It's never appropriate to physically abuse anyone and there is a high risk for the safety of the child if the parties have been violent with each other. It's called the "cycle of violence" because it is very difficult for people involved in the cycle to get out. Note that the child does not have to be present during the violence, nor does he have to be a victim of it for the court to consider this factor. Due to the fact that domestic violence is not always reported, when this subject is discussed, the other side is quick to deny the allegation and it is often a he said-she said situation without any documentation or witnesses. The last factor is a catch-all, "Any other factor considered by the court to be relevant to a particular child custody dispute." If you think there is any other important information the court needs to know that doesn't fall squarely into one of the other 11 factors, now's the time to speak up. As you can see, there are many considerations that the court needs to reflect on when awarding custody. When I go over these factors with my clients, it often leads to a serious bash session about how horrible a person the significant other is, and we revisit every mistake that person has made in the last 15 years. Don't lose sight of heart of the matter--it's the "Best Interests of the CHILD" statute--you know, Tommy. ---------------- Marie Matyjaszek is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan. Her blogsite is: http://legalbling.blogspot.com/. She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com. Published: Fri, Jan 13, 2012