How does a Court Determine Child Custody and Parenting Time in Michigan?
Going through a divorce is a very emotional time for everyone, especially, if you have minor children. If you have minor children and have separated from your spouse, you may wonder how to split the time between you and your spouse pending the resolution of your divorce as well as how to determine what custody arrangement or parenting time schedule would be in the best interest of your children long term.
First Step: A Conciliator
Typically the court will automatically schedule a hearing with a conciliator within a few weeks after the divorce papers are filed. A conciliator is a nonattorney court professional that will meet with you and your spouse to try to work out a temporary order that dictates the custody of your children and child support obligations pending the resolution of the divorce. The conciliator tries to work with you and your spouse to try to come to a settlement agreement in regard to the parenting time. If you and your spouse cannot come to an agreement, the conciliator will determine a parenting time schedule based on his/her interview with you and your spouse assessing the eleven “best interest of the child” factors pursuant to Michigan statute.
The conciliator will make his/her determination based on past factors of prior responsibilities of the parent before the divorce was filed. The conciliator will try to determine whether the parents were equally responsible for the love, medical care, discipline, religion, schooling, extra curricular activities, etc., of the minor children. Also the conciliator will consider the financial capabilities of the parents to support the children, the physical/mental capacity of the parents, and whether there was domestic violence. The conciliator may also elect to meet with your children if they are old enough to discuss their preference. The conciliator will conduct this meeting outside of the presence of the parents and will not reveal what the children said to the conciliator. All of those factors will be weighed by the conciliator in order to determine the percentage of time awarded to each parent for parenting time.
If a parent is displeased with the recommendations of the conciliator, that parent will have a certain number of days to object to the conciliator’s findings. If an objection is filed, the matter will be scheduled for an evidentiary hearing before a referee or the Judge. This next step should be taken seriously by both parties since it is the equivalent of a trial.
Second Step: Judge and Hearing
At this second stage, the referee or Judge will actually conduct a hearing in which witnesses will be called by both sides to testify. The referee and Judge will also evaluate the eleven “best interest of the children factors” when receiving evidence from the parties. Hearsay documents such as letters from teachers, friends, family, medical providers, etc., are not admissible evidence and, thus, will not be considered by the referee or Judge unless a special hearsay exception applies. It is important to have witnesses available at the hearing prepared to testify at this evidentiary hearing. Anything that is not introduced at this hearing will most likely not be considered by the court at subsequent hearings or by any appellate court on appeal. Therefore, it is very important to have all of the witnesses necessary to prove your case available to testify live at this hearing to support your position.
The referee or Judge will also meet with the children if the children are old enough to discuss their preference. Again, the referee or Judge will not reveal what the children said to him/her.
The referee or Judge will then make a decision to either affirm the conciliator’s recommendations or decide to vacate the recommendations of the conciliator and enter a temporary order of his/her own. Again this will be a temporary order entered pending the resolution of the divorce proceedings. If a referee was assigned to this evidentiary hearing, the parties will have the right to object to the referee’s recommendations as well and go before the Judge for a de novo hearing.
Third Step: DeNovo Hearing
At the de novo hearing the Judge may revisit the custody issue, but will likely only consider evidence that was not available at the time of the evidentiary hearing. The Judge will likely take additional evidence and/or listen to testimony that was not available at the time of the referee hearing. At the time of the divorce, a final order will be entered reflecting the child custody arrangement and the parenting time schedule will be determined based on the best interests of the children.
What You Can Do
Orders regarding child custody and support are never permanent. If an event occurs after the entry of any of the orders issued by the conciliator, referee, or Judge that should impact child custody or parenting time, the court will revisit the custody arrangement. However, the court will only consider evidence gathered after the entry of the last order by the court through the time of the hearing requesting a change of the custody of the children or the parenting time schedule.
The court only has a few hours to assess whether one parent is better equipped to have primary custody. Thus, it is very important to try to resolve child custody and parenting time disputes with your spouse in the best interests of your children before any evidentiary hearings since you both have had the benefit of years to evaluate a custodial arrangement that would be in the best interest of your children. If an agreement cannot be reached, please be sure to have admissible evidence available at the time of the evidentiary hearings to support your position since the court can only has a few hours to assess which parent is better suited to have primary custody of the children. If the evidence is not admissible, the court will not be able to adequately assess what is in your children’s best interest.