This firm believes that children need both parents. Although we recognize that there are instances when one or the other parent may not be acting in the children's best interest. We assist clients with concentrating on whether the parent acting in a negative manner with the children is doing so only because of the emotional aspects of the divorce or custody matter or because they are, in reality, unfit as parents. The law in Michigan firmly favors both parents having a healthy relationship with their children, such that there is a strong legal presumption for joint custody in every divorce or custody matter.
Unfortunately, the adversarial nature of litigation pits parents against each other to the detriment of their children. Clients must be informed of the fact that most judges loath fights between parents over children. Parents who bad-mouth the other parent or try to persuade the children to his or her side are severely reprimanded by judges.
We educate our clients to not be so concerned with the label of who has or does not have "custody" of the children. What is most important is the interaction the children have with both parents and the parents having the ability to both work together for the children's future health, stability and success.
In Michigan law, the statute governing custody, The Child Custody Act makes no specific differentiation between what has been traditionally coined as two types of custody: Legal and physical.
Legal custody pertains to decisions made by parents regarding children's health, education and religion. Again, there is a strong presumption for joint legal custody wherein both parents share these major decisions during the time the children are minors. This means parents must cooperate and communicate with each other regarding these issues. Day to day decisions are made by the parent who has the children in their care at that time. Most parents agree to joint legal custody and judges, as a matter of course, order joint legal custody.
Sole legal custody is awarded, only after a trial where one parent proves that the other parent is incapable and cannot participate in making joint decisions regarding the children. This is very difficult to prove, given the legal presumption for joint legal custody of children by their parents.
This term is less and less used. The term used more frequently is "primary residence" denoting generally that parent's home in which the children have their address and attend school. The term physical custody refers to the parent who primarily cares for the children on a day-to-day basis. Joint physical custody means that both parents are sharing time with the children on a day-to-day basis. The actual parenting plan is the key to determination with respect to the time the children spend in either parent's home. A shared physical custody arrangement takes into consideration the needs of the children, the children's schedules and the schedules of both parents. In order to craft a realistic schedule, it is important to examine the parents' work schedules as well as determining where and what times the children must be for school and their other activities and above all, what works best for the family. Our attorneys have experience with a myriad of different custody options to present and discuss with clients. Keep in mind that "joint physical custody" is successful only when the parents can effectively communicate and cooperate with each other for the ultimate benefit of their children.
Parenting time denotes the amount of time each parent spends with the children. The Child Custody Act defines parenting time as the number of overnights in a year each parent has with the children after settlement in a divorce, custody or paternity matter. When a court must decide this issue, the "best interest" factors are used to determine what is the most advantageous for the children, just as the court would decide custody issues. The best schedule for the children are the ones that parents decide and agree on rather than a schedule decided on by judges or friend of the court personnel.
Every situation is different and parents should be informed of projected schedules that take into account the future with the changing ages and needs of their children. A good schedule for an infant who requires frequent and short visits will not apply to a school age child, who needs more time with each parent. Teenagers typically would rather spend more time with their friends, school, and other social activities than with either parent.
Many parents have custodial or parenting time arrangements wherein the children spend equal amounts of time with both parents. Such arrangements can be week-on/week-off; on one week, a parent could have 3 days, with the other parent having 4 days, and then reversed to 4 days/3 days in the next week; one parent could always have every Monday and Tuesday, and the other parent would then have every Wednesday and Thursday, the parents then alternate weekends. These equal parenting plans generally work best when the parents live in the same school district thereby avoiding disruption to the children during the school year. To avoid such disruption, one parent may have more time during the school year weeks, while the other parent may have the children more time during the summer weeks, when the children are out of school. "Nesting" is another form of joint custody that some highly cooperative parents choose for their children. In this form, the children stay put in the same home and the parents move in and out of the home during their scheduled time with the children. This custody arrangement is expensive and difficult for the parents to maintain.
Joint custody and parenting time arrangements work best when both parents have the ability to put their children's needs first, rather than squabbling about who has more minutes, hours or days with the children. There is no doubt that children need extensive amounts of time with each parent in order to maintain healthy relationships with both parents, but there is no limit to coming up with creative ways to configure a schedule that works best for the children and the restructured family. There are many resources that parents can use to make their specific custody arrangement a success and we can assist you with providing numerous and creative options.
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