Can a Child Choose Who to Live with in Michigan Custody Proceedings?

Child custody is the most challenging part of many divorces and is typically the largest source of friction between the divorcing parents. Often, the children themselves have an expressed preference regarding which parent they will live with, which the courts may consider as one part of their decision. That said, custody is not awarded solely according to the child’s preference. In some cases, that preference will have little bearing on what the court ultimately rules.

The Basics of Michigan Child Custody Proceedings

Whenever matters of child custody arise – whether during divorce, disputes between unmarried co-parents, or post-divorce settlement modifications – Michigan courts make any decisions concerning children based on what they believe is in the best interests of the child. The courts will consider various factors in making this determination, including the child’s emotional, educational, and physical well-being, the stability of each parent’s home environment, the capacity of each parent to provide love, guidance, and financial support, and any histories of domestic violence or substance abuse.

Any legal proceedings regarding children must be initiated in the county where either the parent filing the case or the children in question live. If the parents are divorcing, they will need to settle matters regarding custody, visitation, and support before the divorce can be finalized. If the parents were never married, they would need to establish paternity.

At this point, many counties will require the parents to complete certain classes, meet with a friend of the court for a conciliation meeting, and/or go through mediation before the courts hear their case. Only after these less-contentious options have been exhausted will the courts become involved.

Best Interest of the Child Explained

At the core of Michigan custody laws is the best interest of the child. This pertains to several factors which collectively shape the decision of the court. Michigan’s best interest factors are pivotal in prioritizing the child’s well-being. The factors the court considers include:

• The family environment and the stability present in each parent’s home
• The deep emotional ties that exist between the child and each parent
• Each parent’s capability to meet both the emotional and physical needs of the child
• The child’s academic performance
• The moral standing and character of each parent
• The state of physical and mental health of each parent
• The level of willingness exhibited by the parents to promote and support a relationship between the child and the other parent
• The presence or absence of any history of domestic violence within the family
• Specific circumstances, such as a parent’s job that requires a lot of travel
• The child’s own stated preferences
• Any additional factors the judge deems pertinent to the case

Additionally, Michigan custody laws emphasize promoting and maintaining consistent and positive relationships between the child and both parents. While some may wonder, “Can a child choose which parent to live with?” it’s crucial to understand that decision-making goes beyond just the child’s preferences. The court will always prioritize a setting that ensures safety, stability, and a nurturing environment over the child’s wishes.

When Are Children Old Enough to Express Their Custody Preference?

Can a child choose which parent to live with in Michigan? Under Michigan custody laws, a child cannot legally decide where they want to live until majority age (18). Very young children usually cannot reasonably express their wishes. There is also the danger that one parent might “coach” a young and impressionable child to achieve their desired outcome. Typically, the court wants to hear from children who are mature enough to express their preferences without parental interference. While different children mature at different ages, the older a child is, the likelier the court will factor their wishes into its decision.

Will the Child Need to Testify in Court?

Having a child testify in court is emotionally taxing for all parties involved. Typically, Michigan courts avoid children testifying in a family legal matter. Instead, they might opt for other methods, such as interviewing the child in the judge’s chambers, to ascertain their feelings and preferences without subjecting them to the pressures of the courtroom.

In-Camera Interview

Instead of having the child testify in open court, some judges may opt for an “in-camera” interview. This is a private session in the judge’s chambers, away from the formal courtroom setting, parents, and attorneys. The goal is to make the child feel more at ease.

Guardian ad Litem or Custody Evaluators

In some cases, the court may appoint a guardian ad litem, child psychologist, or custody evaluator to speak on behalf of the child. These individuals can provide insights into the child’s needs and preferences without requiring the child to testify.

How are Parenting Time and Child Custody Determined?

Custody lawyers in Michigan will tell you that the state recognizes two types of custody: legal and physical. Legal custody describes the right of parents to decide where the child will go to school, what religious training they receive (if any), and what medical care they receive. Physical custody determines where the child lives and how much time they spend with each parent. It also gives parents the legal right and obligation to care for the child while in custody.

Parenting time is a limited form of custody, formerly called “visitation.” Child custody in Michigan could be joint or single. When deciding specifics for child custody, the court considers the best interest factors and, if the child is old enough, their stated preference.

The Role of Friend of the Court in Child Custody Proceedings

The Friend of the Court is indispensable in Michigan’s child custody battles. Established in 1919, Michigan’s Friend of the Court (FOC) offices serve each circuit court’s family division. Their primary roles include:

• Investigating and offering recommendations on matters like custody, parenting time, child support, and medical support when instructed by the judge
• Offering alternative dispute resolution services for custody, parenting time, or support disagreements
• Collaborating with the Michigan State Disbursement Unit (MiSDU) to manage support payments as dictated by the court
• Helping enforce court orders on custody, parenting time, and support
• Supplying forms for motions and responses related to custody, parenting time, support, change of domicile, and repayment plans

However, the FOC cannot:

• Probe into criminal activities or abuse and neglect, though they must report abuse and neglect when observed.
• Alter a court order.
• Offer legal counsel.

Contact a Michigan Custody Lawyer Today

At Alward Fisher, we understand that doing what’s best for your children requires compassion, dedication, and an in-depth knowledge of Michigan custody laws – and that’s exactly what we’re proud to offer. We serve families throughout Northern Michigan and Traverse City with supportive, personalized legal representation. If you have questions about your child custody situation, contact Alward Fisher today for a confidential consultation.

This article was previously published in June 2022 and updated for relevance in Oct 2023.