Michigan Divorce, Child Custody, Child Support Frequently Asked Questions
While browsing our website, many questions may have occurred to you. This is perfectly normal, as all family law topics (Child Custody, Divorce, Child Neglect, etc.,) are very complex. In this section, we will answer the most frequent questions we receive. We will also direct you to areas of our website that address each subject in more detail. Please bear in mind that the answers to these Frequently Asked Questions are not to be taken as legal advice, and should never substitute for a one-on-one consultation with a member of our legal team. If you would like to schedule a consultation, please do not hesitate to call us at 1-517-886-1000.
What is a Divorce? How will it affect my husband/wife and I?
A divorce is a legal action terminating the marital relationship. Through the divorce process, the court will sever the legal bond and divide marital assets and debts, determine alimony and/or child support if appropriate, custody, and even grandparent visitation.
My marriage is distressed. Is our situation one that merits filing for Divorce?
Michigan recognizes what is called “no-fault” divorce. This simply means that in order to file for divorce one spouse must claim that “There has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”
What is a No-Fault Divorce?
No-Fault Divorce simply means that no party in the marriage has to take responsibility for the break up of a marriage. No reasons need to be given for the divorce.
I am interested in filing for divorce from my husband/wife. What are the requirements?
One spouse may file for divorce in Michigan if he/she has been a resident of the state for at least 180 days and a resident of the county in which the divorce is filed for at least 10 days. If a couple has filed for divorce and there are no minor children born to the couple, the divorce may be granted after 60 days of the filing date of the complaint. However, if there are minor children born to the couple, there is a mandatory waiting period of 6 months before the divorce may be granted. Additionally, if divorcing spouses disagree on the issues (property, custody, etc.), the length of time before the divorce is final may be delayed.
Our divorce has separated my soon to be ex-husband/wife and I even further. What will happen to our child, assets, and who gets custody of our children?
While the divorce is pending, the court may grant temporary orders regarding child support, child custody and use of marital assets. These orders are only temporary and may be changed at the time the divorce is finalized.
Who will determine custody of our children?
Courts have the power to determine both legal and physical custody of minor children.
What is “Physical Custody”?
Physical custody is where the child actually lives.
How will the court determine who gets Physical Custody?
In order to determine physical custody the court must look at the best interests of the child. There are a number of “best interest” factors that are considered in making a custody determination. Those factors are as follows:
1. The love, affection and other emotional ties existing between the parties involved and the child.
2. 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.
3. 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.
4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
5. The permanence of the family unit of the existing or proposed custodial home or homes.
6. The moral fitness of the parties involved.
7. The mental and physical health of the parties involved.
8. The home, school and community record of the child.
9. The reasonable preference of the child if the court considers the child to be of sufficient age to express a preference.
10. 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.
11. Domestic violence – regardless of whether the violence was directed against or witnessed by the child.
12. Any other factor considered by the court to be relevant to a particular child custody dispute.
If I dont get Physical Custody of my son/daughter, what kind of decisions will I play a role in?
Courts favor joint legal custody which allows both parents the right to participate in decisions regarding their children’s education, medical treatment, religious training or enrichment activities.
My husband/wife was given Physical Custody. What type of Visitation rights will I receive?
The parent who does not have primary physical custody of the minor children is usually granted parenting time. Parenting time for the non-custodial parent consists of alternate weekends, alternate holidays, a portion of school vacations, and one evening per week.
I think my child is being negatively affected by the current Grandparent Visitation/Parenting Time rules made by the court. Can I get them changed?
After a child custody and parenting time order has been entered, it can only be modified if the parent seeking modification can prove that there is a change in circumstances or good cause why custody or parenting time should be changed. Not just any change in circumstances will be sufficient to get a court to revisit the previous order. The evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had, or will almost certainly have, an effect on the child. In order to determine physical custody the court must look to the best interests of the child.
What is the process the court will use in determining my responsibility for Child Support payments?
While Michigan Courts generally follow mandated Child Support Formula, there are still several factors that are considered in determining child support.
One of the most important factors is income. In Michigan the Child Support Formula take into consideration the income of both parents. The amount of income of each parent and their ability to contribute will be heavily considered in calculating the amount of child support each parent is obligated to pay.
Another factor that plays a role in child support are the healthcare expenses for the child. The child support order needs to spell out who will pay for the child’s health insurance. The amount spent on health insurance is added to the basic child support order and then credited to the parent who pays it. Additionally, each parent will be ordered to pay a percentage of any additional out-of-pocket healthcare expenses.
A final important issue in determining child support is the amount of time that the children spend with each parent. The more time that the children spend with the non-custodial parent, the more expenses that parent incurs to support the children. In situations where there is shared physical custody or extensive Grandparent Visitation, the amount of child support awarded will probably be less than in situations where there is sole physical custody and little Grandparent Visitation.
I think my husband/wife is getting more then what is needed in Child Support payments. What should I do to clarify this?
While there is a presumption that the child support formula provides the correct amount of child support, it is possible to obtain an award that is higher or lower than the amount determined by the formula. This will require a judicial determination of extenuating factors that allow for a deviation from the formula.
Is there any way for me to get a deduction from Child Support?
In certain special situations, a parent may be entitled to a “deduction” of the amount of child support for which they are responsible. For example, if a parent is already paying child support or alimony from a previous situation, they will generally be allowed to deduct that amount from their income. However, in order to get the deduction, the support payments must be court ordered, and the parent must actually be making the payments.
Is it possible to challenge the amount the court has mandated as a child support payment?
Once the court has set the amount of Child Support, it can only be modified where there is “clear and convincing” evidence that a change in circumstances justifies modification.
Who can receive Alimony or Spousal Support?
Alimony (spousal support) may be granted to either spouse if the court deems it necessary for the support and maintenance of one of the parties after the divorce. Determination of Alimony is based upon the financial situation of the divorcing couple. The statute allows the trial court to award spousal support in an amount that it determines to be “just and reasonable”.
How is Alimony/Spousal Support determined?
In the state of Michigan, Alimony is determined on a case by case basis in which the court will examine the following factors to decide what amount of Alimony/Spousal Support is warranted:
1. The past relations and conduct of the parties; Infidelity and/or Substance Abuse can play a role in determining the amount of support to be paid, even though Michigan is a No-Fault divorce state.
2. The length of the Marriage; A longer period of marriage coupled with one spouse having no career or marketable skill can be a significant part of the Spousal Support equation when reviewed by the court.
3. The ability of the parties to work; Temporary awards of spousal support are rigidly scrutinized by the courts if it is determined or, at the least, questioned as to whether or not the spouse awarded support is capable of working after the support lapses.
4. The source and amount of property awarded to the parties; once given by the courts, either side should not have to forfeit their property in order to support themselves.
5. The parties ages; This factor bears relevance when discussing the capability of the parties to support themselves.
6. The abilities of the parties to pay alimony; This factor is especially important to verify that one side will not be unduly punished by the implementation of alimony payments to the other party. It also serves to determine whether one party is significantly lessening their income in order to avoid paying spousal support.
7. The present situation of the parties; Takes into consideration the need for spousal support with the foreseeable future needs of the one receiving support.
8. The needs of the parties; The court will evaluate various present and future factors to determine the need for support.
9. The health of the parties; A parties health is especially relevant to their ability to work as well as their personal needs for support.
10. The prior standard of living of the parties and whether either is responsible for the support of others; A spouse seeking support should not be deprived of their right to enjoy the standard of living had the marriage survived.
11. contributions of the parties to the joint estate. This takes into consideration who put what into the “Marital Pool.” It, as with all the other factors, just helps guide the decision of the courts.
12. General principles of equity; These factors take into consideration the ability of one party to pay the other party, the fairness of granting support, as well as other fairness issues.
How long will I receive spousal support if it is awarded?
Generally, Michigan courts will look at the following factors, applying different weights to each depending on the situtation:
Duration of the marriage
The parties’ contributions to the marital estate
Parties’ level in life
Parties’ necessities and circumstances; AND
Respective earning abilities.
What is Child Abuse as defined by the state of Michigan?
Child Abuse is defined by Michigan law as “harm or threatened harm to a child’s health or welfare that occurs through non-accidental physical or mental injury, sexual abuse, sexual exploitation, or maltreatments, by a parent, a legal guardian, or any other person responsible for the child’s health or welfare or by a teacher, a teacher’s aide, or a member of the clergy.”
What is Child Neglect? Is it the same as Child Abuse?
Child neglect is defined by Michigan law as “harm or threatened harm to a child’s health or welfare by a parent, legal custodian, or any other person responsible for a child’s health or welfare that occurs through either of the following:
(a) Negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care.
(b) Placing a child at an unreasonable risk to the child’s health or welfare by failure of the parent, legal guardian, or other person responsible for the child’s health or welfare to intervene or eliminate that risk when that person is able to do so and has, or should have, knowledge of the risk.
It is not the same as Child Abuse, as Neglect can be simply putting the child in an unreasonable situation.
What is an example of Child Abuse and/or neglect?
Sometimes children have been removed from a parent’s home and parental rights have been terminated because a parent has failed to protect the children from an abusive spouse or from an abusive live-in boyfriend or girlfriend. A parent who regularly uses illegal drugs or alcohol and who, as a result, fails to provide adequate housing or care for the children can have parental rights terminated. Failure to make sure that a child receives needed medical care can also be found by the court to be child neglect and can lead to termination of parental rights.
How do I report a suspicion of Child Abuse? If I am wrong will I face legal penalties?
People who in good faith report potential child neglect or Child Abuse are protected by law from being sued. Some people are required by law to make a report when they suspect child neglect or abuse. These people include: doctors, nurses, other medical care providers; school administrators, teachers, and counselors; mental health workers in all specialties; law enforcement personnel; clergy; and regulated child care providers. Anyone who intentionally makes a false report of suspected Child Abuse or neglect is guilty of a crime and could be prosecuted.
Can the courts really strip me of my Parental Rights?
In cases of severe abuse or neglect, the Family Court may be asked to terminate the parental rights of one or both parents. If parental rights are terminated, that means that the parent-child relationship is permanently severed.
Does a trial need to occur before my parental rights are terminated? Or does the court have free reign on it?
Prior to terminating parental rights, the Family Court must conduct a trial. The prosecutor will represent the Department of Human Services, and each parent is entitled to be represented by counsel. Each parent is entitled to present evidence. The court will only consider “competent evidence” if termination of parental rights is requested. That means that the Michigan Rules of Evidence will apply. Hearsay evidence will not be admitted unless a specific exception applies. It’s up to the prosecutor to prove neglect or abuse by “clear and convincing” evidence.
(a) Desertion. The child has been deserted or abandoned under any of the following circumstances:
(i) The child’s parent is unidentifiable, has deserted the child for 28 or more days, and has not sought custody of the child during that period.
(ii) The child’s parent has deserted the child for 91 or more days and has not sought custody of the child during that period.
(iii) The child’s parent voluntarily surrendered the child to an emergency service provider and did not petition the court to regain custody within 28 days after surrendering the child.
(b) Parent Harmed Child or Sibling. The child or a sibling of the child has suffered physical injury or physical or sexual abuse under one or more of the following circumstances:
(i) The parent’s act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home.
(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent’s home.
(iii) A non-parent adult’s act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse by the non-parent adult in the foreseeable future if placed in the parent’s home.
(c) Expiration of 182 Days. The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.
(ii) Other conditions exist that cause the child to come within the court’s jurisdiction.
(iii) The parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.
(d), (e), and (f) Guardian or Limited Guardian. The child’s parent has placed the child in a limited guardianship and has substantially failed, without good cause, to comply with a limited guardianship placement plan.
To terminate parental rights in such a case, the Family Court must find either
(i) that the parent’s failure to comply with a guardianship plan is sufficiently serious that it has disrupted the parent-child relationship; or
(ii) that a parent who had the ability to provide support for the minor and who had the ability to visit, contact, or communicate with the child, didn’t provide regular and substantial support, without good cause, and substantially failed, without good cause, to visit, contact or communicate for a period of 2 years or more before the filing of a petition to terminate the parent’s rights.
(g) Failure to Provide Proper Care or Custody. The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
(h) Parental Imprisonment. The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
(i) Prior Termination of Parental Rights. If a parent has previously had parental rights to one or more siblings of the child terminated because of serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parent(s) have been unsuccessful.
(j) Likelihood of Future Harm. There is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.
(k) Serious Abuse or Neglect. The parent abused the child or a sibling of the child and the abuse included one or more specific forms of abuse or neglect such as criminal sexual conduct involving penetration, battering, or life-threatening injuries.
(l) Termination of Parental Rights by a Michigan Court or Courts of Another State. The parent’s rights to another child were terminated as a result of neglect / abuse proceedings in Michigan or elsewhere.
(m) Voluntary Termination of Parental Rights by a Michigan Court or Courts of Another State. The parent voluntarily agreed to termination of his or her parental rights to another child – either in a Michigan Court or in some other state’s court.
(n) Conviction of Certain Specified Crimes. The parent is convicted of one or more of the following, and the court determines that continuing the parent-child relationship with the parent would be harmful to the child. These crimes include murder, criminal sexual conduct, or repeated violent crimes. [It isn’t necessary that the crime was committed by a third party instead of the child or the child’s other parent].
If my parental rights have been terminated, am I still obligated to pay Child Support?
Yes. Until recently, there had been a lot of speculation within this area of the law. On March 3rd, 2010, The Michigan Court of Appeals clarified the issue, stating that unless there was an adoption, a court order that terminates parental rights does not end an obligation to support the child. The case that settled this issue In Re: L.M. Beck, can be found here. While this case does not have the full impact of law (it is still awaiting a Michigan Supreme Court review) it’s implications should not be underestimated. Until it is reviewed by the Supreme Court of Michigan, a parent facing a termination of their parental rights should assume that if they lose the termination trial, or voluntarily release their rights, they will become vulnerable for a claim to continue payment of child support.