DIFFICULTY: Legal assistance is required
Initial Filing Fee: $40-$375 depending on the type of case
Michigan seeks the best interest of a child in any child custody case, and while a judge will attempt to establish joint custody whenever possible, they can and will entitle one parent to full custody of the situation warrants it. Types of cases in which child custody becomes an issue are divorce, paternity, and family support. In all three cases, the process is generally the same, where one parent or guardian must file for custody and a hearing is held to determine how custody will be divided, hearing both sides of the case. The main criteria for the placement of custody, however, is the best interests of the child, which are considered in terms of twelve items. Additionally, custody cases in Michigan begin with the Friend of the Court office, where a mediator will meet with both parents and make an official report on what they believe the best interests of a child are. This is then considered by a judge when making the final ruling, for while it is an expert statement it is not a legally binding report. While a lawyer is not required for custody proceedings, any parties that disagree on custody arrangements would do best to hire a lawyer to advise and guide them through the process of mediation and bargaining.
Step 1: Attempt to Mediate the Problem Yourselves
The first step in any child custody dispute is for the parties to try and mediate the issue themselves. If for some reason this does not work out, either party may then proceed with official custody actions. Should this work, however, it can save a lot of time, trouble, and money.
Step 2: File a Complaint
The first step in achieving a judgment concerning child custody is to file a complaint with the family division of your area’s circuit court. This may be in the jurisdiction that either party lives in, as long as the person has been there for at least six months. The most common complaints that lead to issues concerning child custody are complaints for divorce, child support, spousal support, establishing paternity, establishing custody, or establishing parenting time with a child. When you submit your complaint you will need to provide the clerk of court with the number of copies listed on the top right of the form, as otherwise they may be unable to accept. Then, you will need to pay any related fees to file your complaint and pay the appropriate fees for serving the defendant.
Step 3: Serve the Defendant
The next step is that the petitioner needs to decide how the defendant will be served and pay the appropriate fees to the clerk of the court. The two options are to serve the defendant by certified mail with a return receipt request or to pay an agent to serve them in person. In extraordinary cases, such as when the defendant cannot be found, the plaintiff may serve them through publication, though only will special allowance from the court. Once the service has been made, the plaintiff will need to complete a Proof of Service/Nonservice Form and submit the aligning proof to the family division’s clerk of the court.
Step 4: The Defendant Answers the Complaint
Once the defendant receives the complaint they will have 21 days to submit an answer to the complaint, stating whether they would like to debate the complaint or not. In cases where the defendant lives out of state or was served through publication, this is upped to 28 days. Should the defendant not answer within the given period, the court may proceed with a judgment without hearing their side of the case. If they agree to the items put before them, however, or can reach an agreement with the plaintiff on their own, then the parties may fill out and submit their agreement to the court for approval, at which point they would grant an Order Regarding Custody and Parenting Time without requiring a hearing.
Step 5: Meet With the Friend of the Court Office
When two parties cannot agree on child custody, the parties involved may meet with the Friends of the Court Office, who will act as a mediator to determine what is best for the child. If a custody and parenting time agreement cannot be reached, the Friends of the Court will then consider the best interests of the child according to the following guidelines:
• The love, affection, and other emotional ties existing between the parties involved and the child
• 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
• The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
• The permanence, as a family unit, of the existing or proposed custodial home or homes
• The moral fitness of the parties involved
• The mental and physical health of the parties involved
• The home, school, and community record of the child
• The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference
• 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
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child
• Any other factor considered by the court to be relevant to a particular child custody dispute
Once these have all been considered, the Friends of the Court office will submit a report to the judge hearing the case as an aid for their ultimate decision. Should the parties agree to manage on their own, they must file a motion requesting an order exempting their case from all Friend of the Court services. This means filling out and submitting to the clerk an Advice of Rights Regarding Friend of the Court Services Form. Parties may not opt out of this service, however, if domestic violence is involved in the custody case or if either of the parties possesses an uneven bargaining position.
Step 6: The Hearing and Judgment
At the hearing, both parties will have the opportunity to share their side of the situation as well as present any evidence or witness accounts that corroborate their claims. Once this is done the judge will render a judgment and issue an Order Regarding Custody and Parenting Time, wherein the specifics of the judgment will be detailed. Should either party not show up to the hearing, however, the judge may choose to proceed as usual, throwing out the case or enacting a default judgment in favor of the plaintiff, or they may reschedule the hearing. This is entirely up to the judge on a case to case basis, however, and thus you should never miss or be late to a hearing.
Step 7: Appeals
If either party disagrees with the judge’s decision, they may file a motion that the judge reconsider their judgment or appeal to a higher court. In the latter instance, they will need to file an appeal with the Court of Appeals and proceed with the process outline on their site. It is highly advisable to hire a lawyer at this time if one has not already, as the process of appeals gets even more complicated than the original custody complaint and hearing.