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You do not have to have an attorney in order to file for a custody order, but it is a good idea because there are many complicated legal issues involved. Neither the Prosecuting Attorney nor the Friend of the Court can act as your legal counsel, or file a custody petition for you.
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Child custody involves two issues. Legal Custody refers to who makes the important decisions in the child's life: where the child lives, where the child goes to school, whether or where the child worships a religion, or consent to the child's medical procedures. Physical Custody refers to where the child lives. Each type of custody is specifically ordered as either Joint Custody or Sole Custody. 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, three consecutive weeks in the summer) 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 in the case's circumstances.
The Complaint filed by the Prosecuting Attorney's office to establish paternity or an initial child support order will also attempt to specify legal and physical custody of the child. If the parents agree to specific custody terms (example: parents share legal custody, and mother has full physical custody) the Prosecutor's Office will advocate for that in court. If the parents disagree, the Prosecutor's proposed Order to the judge may refer issues of custody, parenting and child support calculations to the Friend of the Court (FOC). At this point, the Prosecutor's Office is no longer involved in the case because the parents either represent themselves or hire attorneys to help them through the FOC investigation process. After an investigation and possibly fact-finding hearings, the FOC will make a recommendation to the Judge that could settle the debated issues.
Either party can file a timely objection, which then place the issues in front of the assigned Judge for a final decision. The Prosecuting Attorney does not appear in court on custody or parenting time ("visitation") issues or disputes in the Friend of the Court process. If you need help because you are being denied parenting time, you may contact the Friend of the Court for assistance once a judgment has been issued by a Circuit Court Judge, or you may seek the assistance of a private attorney who specializes in family law. If you believe that the other parent has "kidnapped" your child, contact the police. They will conduct an investigation and possibly refer the case to the Prosecuting Attorney to decide whether a crime has occurred requiring prosecution.
A petition/lawsuit must be filed in Circuit Court requesting that the court to grant you custody of your child(ren). If both parties agree and sign an agreement (called a Consent Agreement), that will be entered as a custody order (if the Judge approves the terms, too).
As mentioned, if paternity is established through an Affidavit of Parentage, the legal father does not gain enforceable legal or physical custody of the child. By Michigan statute, the mother keeps full legal and physical custody of her child until a court order changes this status. Often, the Acknowledged Father benefit from the formality of a child support order because his right to legal or physical custody will be addressed, and a court order giving him some level of physical or legal custody is more than he had through his acknowledgment of paternity form.
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. This process takes place at the Friend of the Court's office, not with the Prosecuting Attorney's office. Usually, an existing custody order will not be changed unless there is a "material change in circumstances" since the custody order was entered.
The Friend of the Court (FOC) will provide domestic relations "mediation" to help resolve disagreements over the terms of custody. Mediation is a voluntary process where a neutral third party assists in settling disputes.
If the parties cannot agree on the terms of custody, or if mediation does not resolve disputes, the FOC will conduct an investigation and file a written report and recommendation with the Circuit Court based on factors listed in the Michigan Child Custody Act. The parents will get copies of the report and recommendation. A court hearing will follow before the Judge decides what to do about custody.
File a petition requesting that the court grant you visitation time with your child(ren). If both parties (and the Judge) agree and sign an agreement, that will be entered as a visitation order. A visitation order can be changed by filing a petition to modify the order, or the parents can sign a written agreement, which the Judge can approve and enter. The Friend of the Court will provide domestic relations "mediation" to help resolve disagreements over the terms of parenting time.
If the parties cannot agree on the terms of parenting time, or if mediation does not resolve disputes, the Friend of the Court will conduct an investigation and file a written report and recommendation with the Circuit Court, based on factors listed in the Michigan Child Custody Act. The parents will get copies of the report and recommendation. A court hearing will follow before the Judge decides what to do about custody. The Child Custody Act states that visitation shall be granted in accordance with the "best interests of the children." A child has a right to parenting time with the non-custodial parent unless the Judge rules by clear and convincing evidence that the visitation would endanger the child's physical, mental or emotional health.
First, contact your attorney (if you hired one to assist you getting the custody order). Otherwise, file a written complaint with your county's Friend of the Court (FOC), 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 Friend of the Court has reason to believe that the Parenting Time order has been violated, the office may:
Allegations of suspected child abuse or neglect should be reported to the Michigan Department of Health and Human Services (DHHS) at 855-444-3911, a toll-free, 24/7 hotline. Your identity as the person who reported concerns is confidential. The hotline staff will take information from you and the case will be assigned to the appropriate local DHHS office's Children's Protective Services (CPS) investigation unit. You may also call 911 or your local police agency and provide your concerns and information about the child and family issues. Police officers work together with CPS investigators on issues of child abuse, and involvement of police does not guarantee that criminal charges will be requested or issued.
If the DHHS investigation determines that abuse or neglect has occurred, the Prosecuting Attorney may be asked to assist DHHS in filing a civil neglect petition in the Family Division of Circuit Court. The Friend of the Court must conduct an investigation when a party files a visitation or custody petition; allegations of abuse or neglect should be communicated to the Friend of the Court during this investigation.
The Michigan Department of Health and Human Services (DHHS) website has a helpful page about parenting time issues. Many counties have local variations, which can be found on the Friend of the Court Bureau website.