Can a Younger Child Decide Which Parent to Live With?

The Court may take into consideration the preference of a minor child when it comes to which parent gets physical custody in a divorce proceeding.

Young Sarah was distressed that her parents were getting a divorce, and she did everything she could to try to bring them back together, including being on her best behavior – listening to her parents, not fighting with her brother, cleaning her room and doing her chores without being asked.

It soon became clear, however, that the divorce would happen. Sarah thought she would have to make a terribly difficult decision – deciding which parent her and her brother would live with. Since her younger brother was too young to be involved in that decision, she felt the pressure of speaking for both of them.

Sarah’s parents were as conflicted as 12-year-old Sarah regarding the child’s permanent residence. Her father, Martin, thought the children should live equally with both parents because he provided an even temperament and steady hand and was involved with their school and sports. He also had been the primary breadwinner and had provided most of their financial support.

Her mother, Molly, thought the children should live primarily with her because she had provided more care for the children while Martin worked longer hours. Molly also thought the children needed more nurturing and a mother’s gentle touch during this stressful period in their lives.

Attorneys for both parents advised that Michigan custody law considers two types of custody for children: legal custody and physical custody.

Legal custody refers to parents’ rights to make important life decisions for their children, such as what school to attend or whether to receive medical or dental treatment. Legal custody can be joint, where both parents make those decisions together. Or one parent can exercise sole legal custody and can therefore make those decisions without consulting with the other parent.

Physical custody refers to the parents’ rights to parenting time with their minor children. (For more on the distinction between legal and physical custody, please refer to this link: custody.)

When parents agree on custody, the Court usually abides by their decision unless the court decides that the parents’ agreement somehow is not in the best interests of the child. When custody is contested – as it was for Sarah and her brother – the Court considers the Best Interests of the Child Factors:

Factor A: The love, affection, and other emotional ties existing between the parties involved and the child.

For Factor A, the court considers the relationship between the child and both parents. Has one parent done something to damage the relationship with the child? Has one parent not seen the child for a considerable amount of time? Is one parent more involved in the child’s life than the other?

Factor B: The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the children in his/her religion or creed, if any.

For Factor B, the court considers the parents’ involvement in the child’s education and religious upbringing, including school involvement and participation in parent/teacher conferences and other school events. Do parents participate in and support the child’s extracurriculars? This factor also considers each parent’s ability to provide the child with love, support and discipline.

Factor C: The capacity and disposition of the parties involved to provide the children with food, clothing, medical care, or other remedial care recognized and permitted under state law in place of medical care.

For Factor C, the court considers each parent’s ability to provide the necessities of life for the child, including food, clothing and shelter. The court will also consider whether one or both parents provide medical and dental care for the child, including taking the children to those appointments.

Factor D: The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

For Factor D, the court considers the location and appropriateness of each parent’s home, including the number of people in the home, the cleanliness of the home, and whether the child has previously lived in that home.

Factor E: The permanence, as a family unit, of the existing or proposed custodial home or homes.

For Factor E, the court considers the stability of the family unit, not the appropriateness of the physical home or apartment. The court will consider the number of relationships each parent has exposed the child to, as well as the child’s relationship with new significant others and their children.

Factor F: The moral fitness of the parties involved.

For Factor F, the court considers drug and alcohol abuse and criminal records for each parent and any other adults living in that parent’s home. The court will also closely monitor the impact that these issues have had, or may have, on the child.

Factor G: The mental and physical health of the parties involved.

For Factor G, the court will determine whether either parent has a physical or mental health issue that will impair that parent’s ability to properly care for the child.

Factor H: The home, school, and community record of the child.

For Factor H, the court considers the child’s current school and whether custody with either parent would force the child to change schools. Before changing custody from one parent to the other, the court will consider the child’s school performance and involvement in extracurricular activities. For older children, the court considers the child’s behavior outside of school and whether the child associates with positive or negative peers.

Factor I: The reasonable preference of the child.

For Factor I, the court will allow the child to express a preference if the court determines that the child is old enough and has sufficient maturity to express an opinion. If the court does meet with the child, the court will consider the child’s opinion when determining custody, but the court will keep private the child’s opinion.

Factor J: The willingness and ability of the parties involved to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

For Factor J, the court will determine whether either party has damaged the child’s relationship with the other parent. The expectation is that each parent will encourage the child to have a healthy, meaningful relationship with the other parent.

Factor K: Domestic Violence, regardless of whether the violence was directed against or witnessed by the child.

For Factor K, the court consider whether there has been domestic violence in either parent’s home, regardless of whether the child was exposed to the violence.

Factor L: Other.

Molly and Martin were able to agree on every issue in their divorce except custody and parenting time. Since both parents decided to remain in the same town after the divorce, Martin thought they should share parenting time 50/50 on a week-on, week-off basis. Molly thought the children should live primarily with her and that Martin should have every other weekend parenting time, along with one overnight during the week. Molly was concerned that Martin worked longer hours and would have less time to spend with the children.

Because Martin and Molly could not agree on custody and parenting time, they had a hearing before a judge to decide that one issue. Prior to the hearing, Sarah met with the judge and was able to express her preference.

Immediately following the hearing, the judge issued his order verbally from his bench. He told both parents that he had met with Sarah and had considered her opinion, but to protect Sarah, he did not reveal what Sarah had said to him.

The judge agreed that both parents were committed to their children. While the judge agreed with Molly that she had been the children’s primary caretaker because Martin worked longer hours, the judge also agreed with Martin that he needed more than just every other weekend with the children.

Ultimately, the judge ordered that the parents would exercise joint legal custody, but that Molly would exercise sole physical custody. For parenting time, Martin would have every other weekend, Friday evening through Monday morning, and on weeks during which Molly had weekend parenting time, Martin would have overnight parenting time on Wednesday and Thursday. Under this arrangement, Martin would have parenting time on 5 of 14 overnights in a two-week period, instead of the 3 overnights proposed by Molly. The judge also ordered the parents to rotate holiday and spring break parenting time.

At the conclusion of the hearing, the judge reminded both parents that they could and should attend the children’s parent-teacher conferences, extracurricular activities and medical appointments.

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