Child custody proceedings are often part of a divorce action, but child custody actions may be initiated independent of divorce proceedings.
The law of child custody has come full circle: it has changed from the ancient principle that a father has an absolute property right to his children and their services, to the idea that a mother is almost always the best custodial parent, to the current gender-blind “best interests of the child” philosophy espoused by the Michigan Child Custody Act of 1970. The Child Custody Act demands an assessment of the ability of individual parents to care for their children, and, although old assumptions die hard in any area of the law, the act has largely supplanted the law and assumptions that preceded it. The act standardizes the criteria for the best interests of the child and creates a comprehensive framework for decisions regarding child custody. In establishing custody or modifying existing custody arrangements, the court must consider each of the statutory factors. The following is a list of the statutory best interests factors:
- 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, medical care or other remedial care recognized and permitted 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.
The Child Custody Act authorizes a trial court to modify child custody orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests.