Custody and Parenting Time

Types of Custody

Legal Custody vs. Physical Custody: 

Legal Custody refers to who makes the important decisions in the child's life: where the child lives or goes to school, establishing a religious preference, or consenting to a medical procedure. Physical Custody refers to where the child lives.

Joint vs. Sole: 

Each type of custody is specifically ordered as either "Joint" or "Sole". With joint physical custody, the child lives with one parent about half the time and with the other parent about half the time. With sole physical custody awarded to one parent, the child lives with that parent all the time, but the non-custodial parent may still be awarded parenting time throughout the year (e.g., every other weekend, alternating major holidays) if it is in the child's best interests. With joint legal custody, both parents share in making decisions on important issues dealing with the child, and must work together. A parent having sole legal custody makes all of the important decisions dealing with the child. Even if one parent is awarded full physical custody, the order might specify joint legal custody depending on the case's circumstances.

Process to Obtain a Custody Order

A petition / lawsuit must be filed in Circuit Court requesting that the court grant you custody of your child(ren). If both parties agree and sign a Consent Agreement, that will be entered as a custody order (if the Judge approves the terms, too). If the parties disagree, the issue may be referred to a mediator, or the Friend of the Court may conduct an investigation and make a recommendation to the judge.

AOP Does Not Give the Father Custody or Parenting Time Rights

If paternity is established through an Affidavit of Parentage, the legal father does not gain an enforceable legal or physical custody right, or parenting right, for that child. By Michigan statute, the mother retains full legal and physical custody of her child until a court order changes that status. Often, the Acknowledged Father benefits from the formality of a child support order because his right to legal or physical custody, and parenting time, will be addressed, giving him an enforceable right.

Changing a Custody Order

A custody order can be changed by filing a petition with the Circuit Court to modify the custody order --- or the parents can sign a written agreement, which the Judge can approve and enter. Usually, an existing custody order will not be changed unless there is a "material change in circumstances" since the custody order was entered. The Prosecuting Attorney's office is not involved in changing or modifying existing custody orders. The Friend of the Court office should be contacted.

Prosecutor's Role

The Prosecutor's office is primarily involved in establishing paternity and an initial child support order. Most cases handled by our office involve a state interest where the state wants reimbursement for birthing expenses, or financial assistance benefiting the child, like medicaid services, WIC and food benefits, etc. The Complaint filed by the Prosecuting Attorney's office will also attempt to specify custody rights, in addition to establishing paternity, or an initial child support order.

If the parents agree to specific custody terms the Prosecutor's Office will advocate for that in court. If the parents disagree, then issues of custody, parenting and child support calculations will likely be referred to the Friend of the Court. At this point, the Prosecutor's Office is no longer involved in the case. The Prosecutor's office is not involved in FOC investigation hearings, or on custody or parenting time ("visitation") issues or disputes.

Parenting Time (Visitation) Issues

Parenting time is usually ordered for the parent who does not have primary physical custody because the child has a right to maintain a relationship with that parent. If this contact is not in the child's best interests, parenting time can be suspended by the judge.

Parents needing help because they are being denied parenting time, or other terms of a custody or parenting time order are being violated, should contact a private attorney who specializes in family law. Otherwise, file a written complaint with your county's Friend of the Court, requesting that the FOC take action to enforce the order. Include specific facts, dates, times, etc., and the reasons given for the alleged denial of visitation. If the FOC has reason to believe that the parenting time order was violated, the Office may (1) meet with the parties to try to resolve the disagreements, (2) refer the dispute to a mediator, (3) apply the office's local make-up visitation policy, (4) begin a civil contempt proceeding with the Court by filing a petition for a show cause order, and/or (5) petition the Court to change the existing parenting time order.