While Michigan is a no-fault divorce state, misconduct may be considered when it comes to property and child custody issues.

During happy hour with her friends, Amber mentioned that her child’s father, Dave, had not been spending much time lately with their 5-year-old daughter, Abigail. Although Amber and Dave were never married, they had been able to co-parent Abigail since their relationship ended over two years ago. In fact, Amber and Dave had never been to court and had no formal agreement regarding custody, parenting time, and support.


Amber told her friends that Dave had paid her $400 every month since they had broken up, and that he had contributed additional money towards clothes and other expenses whenever Amber had asked – until very recently. Finances were tight for Amber, and she was worried about her ability to provide for Abigail without help from Dave. Dave had also not seen Abigail much over the past few months.

One of Amber’s friends suggested to Amber that she would need a court order to force Dave to pay child support. This friend gave Amber her attorney’s phone number and suggested that Amber at least take advantage of her attorney’s free initial consultation.

Amber did call her friend’s attorney, and she was eager to use the free consultation to determine what her next steps would be. Although Amber was nervous about the potential cost of an attorney, and she did not want to fight in court with Dave, she also knew that she needed his financial support. Amber was also hopeful that Dave would spend more time with Abigail, who seemed to miss her time with her father.

The first question the attorney asked Amber was whether Amber and Dave had signed an Affidavit of Parentage when Abigail was born. Amber did remember signing that document in the hospital shortly after her daughter was born. The attorney explained to Amber that an Affidavit of Parentage is used to establish paternity for unmarried parents. Since Amber and Dave had signed the Affidavit of Parentage, a paternity test would not be necessary.

The attorney further explained to Amber that a court proceeding would begin by filing a Custody Complaint, which would open a court case with the local circuit court. From there, the parties – with the help of their attorneys – would work to establish a custody, parenting time, and child support order. A hearing would be held if they could not resolve those issues with their attorneys’ guidance.

The attorney explained that there are two types of custody in Michigan – legal custody and physical custody. Legal Custody pertains to a parent’s right to make important life decisions for a child. These decisions can include medical treatment, choice of religion, and choice of schools.

Parents can share legal custody, meaning both parents share in the decision-making process for important life decisions, or one parent can have sole legal custody, meaning one parent makes the important life decisions alone, without any responsibility to even notify the other parent of those decisions.

If parents exercise joint legal custody, Michigan law requires the parents to:

  1. foster, encourage and support the relationship between the minor child and both parents;
  2. consult and attempt to agree before major decisions are made affecting the minor child’s education, enrichment activities, camp, travel and medical treatment;
  3. have equal access to medical, psychological and educational records of the minor child;
  4. notify one another of any emergencies relating to the minor child;
  5. be informed about music, school, sports, and other enrichment activities of the minor child and be provided an opportunity to be present;
  6. use their best efforts to work together to ensure a consistent agreement in matters affecting the upbringing of the minor child and shall work together to promote the best interests of the minor children; and
  7. have the authority and responsibility to decide all routine and emergency matters concerning the minor child while the minor child is with a parent.

Physical Custody pertains to a parent’s right to parenting time with the minor child. The parent with whom the child is residing on any particular day makes basic day-to-day decisions for the child, such as bedtime, what to watch on TV, how much time to spend on homework, etc.

As with legal custody, parents can share physical custody, or one parent can have sole physical custody. If parents share physical custody, the parenting time will be 50/50 (based on overnights) or one parent will have slightly more parenting time than the other. If one parent has significantly more parenting time than the other, that parent will have sole physical custody.

Following the initial consultation, Amber decided to hire the attorney. Amber signed the necessary paperwork to file the Custody Complaint. Once Dave was served with a copy of the paperwork, he also decided to hire an attorney. Dave’s attorney entered Dave into the case by filing his Answer to the Custody Complaint.

Amber and Dave were able to quickly settle the issues of Custody, Parenting Time, and Child Support through mediation. Dave wanted to be a part of Abigail’s life and to help make the important decisions in her life, but he did not want equal parenting time. Dave also reluctantly agreed that he would have to pay child support.

Once the agreement was reached, Amber’s attorney drafted the final order, through which the parties agreed to share legal custody, that Amber would have sole physical custody, that Dave would have parenting time every other weekend and on alternating holidays, and that Dave would pay child support according to the Michigan Child Support Formula.

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