Factors used by the courts in determining child custody: Part One

Editor's Note: This is the first of a multi-part examination of child custody by the author.

By: Marie Matyjaszek, Esq.

Law Office of Robert Matyjaszek

If you have children, they are going to be the most important aspect of your divorce (unless you're parenting a la Darth Vader).

The court has to use a specific set of factors to determine custody, which are set forth in Michigan's "Best interests of the child" statute - MCL 722.23. There are 12 total factors that I will discuss here and over the next coming articles.

It's important to distinguish between the two types of custody - legal and physical. Legal custody pertains to which parent can make and participate in the important life decisions of the child - education, medical, religious upbringing and the like. It does not include things like whether or not your child can have Butterfingers® and Mountain Dew® immediately before you turn him over to your ex for parenting time.

Legal custody can be either sole, where only one parent makes the decision, or joint, where the parents share in the choices for their child. I would venture that joint legal custody triumphs in 95 percent of all cases end, as most parents can communicate well enough to be involved in their child's important life decisions.

Physical custody refers to which parent has the child in her or his physical care the majority of the time. It is also either sole, where one parent has the child most of the time, and the other typically has mid-week and weekend visits, or joint, where the parents share an equal or approximately equal parenting time schedule.

Since your parenting time is what actually controls when you see your children, the terminology for sole or joint physical custody often has more of an emotional or implied meaning rather than actually affecting how much the children are in your care.

All of that being said, the first factor is "The love, affection, and other emotional ties existing between the parties involved and the child."

This refers to which parent the child is attached to emotionally - who does Tommy look to when he is hurt, go to when he cries (besides grandma). Most of the time this factor is equal for both parents, but of course when divorcing, some couples feel the need to "one-up" the other and act like the child only seeks mom or dad's attention.

Kind of like the person in dog obedience class that puts bacon grease on his fingers so that the dog worships him and it appears as if that person has mad training skills. (I've seen it happen people - such a disgrace).

The second factor is "The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any."

This factor plays off the first and looks at whether or not each parent exercises proper discipline and parenting skills, encourages and assists them in school and religious upbringing if applicable.

Among other things, the court can consider if parents use corporal punishment (i.e. spanking), time outs, or other types of child-rearing techniques; how they show the child love (hugs, telling him); if the parents have high school degrees, post-secondary/graduate education, attend parent-teacher conferences and if either parent is religious or attends church.

Factor three is "The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs."

I find that parents really enjoy bashing each other with this category, claiming "I carry the health insurance and pay for it," or "He doesn't even know the name of the doctor, let alone when Tommy's due for vaccinations." (HINT - it's not always every three years like Fido's rabies shot. On the plus side, you don't have to license your children).

Employment is obviously a heavy hitter in this factor, because if you don't have a job it makes it very difficult to provide your child with day-to-day necessities.

In this economy, as long as you're trying to gain employment and don't have a pattern of being jobless, this factor won't be too damaging if you're unemployed.

Stay tuned for the rest of the child custody factors, and in the meantime, please swap out Tommy's Mountain Dew® for water.

The author is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan.

Her blogsite is:


She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.

Published: Mon, Nov 14, 2011

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