THERE ARE TWO TYPES OF CUSTODY:
LEGAL CUSTODY: Legal custody refers to a parent’s power to make the important decisions in their child’s life. These decisions include, but are not limited to, what school the child will attend, what religion the child will be raised in, or non-emergent medical decisions (like what medication should be utilized and/or what type of testing should be done). Legal Custody is typically held jointly so that both parents are afforded an equal opportunity to weigh in on these important choices. In the event of a disagreement or dispute when legal custody is held jointly, the Court will step in and make a decision deemed in the best interests of the child.
Quite rarely, and often only when extenuating extreme circumstances exist, one parent may be awarded Sole Legal Custody. In this case, that parent would be entitled to make decisions without the other parent’s input.
PHYSICAL CUSTODY: Physical custody is really only a different phrase for Parenting Time. While you may hear Physical Custody referenced using words like “sole,” “primary,” or “joint,” in reality, the Parenting Time Schedule that is exercised, (i.e., the amount of overnights that each parent has with the child/children), is what controls. For example, and in theory, your Order could assign you “Joint Physical Custody,” but your Parenting Time Schedule could actually provide you with 70% of the parenting time. Accordingly, it is important to not assign too much meaning to the wording as it relates to Physical Custody.
HOW IS CUSTODY DECIDED
If the parents are unable to agree to a custody arrangement on their own, the Court will make their own determination utilizing an analysis of the 12 Best Interest Factors, codified in MCL 722.23 (https://www.legislature.mi.gov/Laws/MCL?objectName=MCL-722-23).
HOW IS CUSTODY MODIFIED
All issues that affect children, including Custody, are always modifiable based on a “change in circumstances,” and/or “proper cause.” In order to modify Custody (either legal or physical), you will first need to demonstrate facts that support and meet this threshold inquiry and these facts need to have occurred after entry of the prior Custody Order. Post-Judgment Motions to Modify Custody often require significant preparation and support, so it is important to discuss same with an attorney to best present your case.