To succeed in a motion to change custody, you must prove either by a preponderance of the evidence (if it would cause no change in the established custodial environment) or by clear and convincing evidence (if it would cause a change in the custodial established environment) that the change is in the child’s best interests.
How these factors are applied and determined by the judge can vary widely from case to case. However, below each element from the statute are some examples of questions to demonstrate how evidence may come in on each one of these factors. These are just examples and are not complete examples of the types of questions or evidence that the court may consider nor how the evidence would need to be presented to come into evidence under the Michigan Rules of Evidence.
722.23.amended “Best interests of the child” defined.
As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
- Do the parties love the child?
- Does the child express physical signs of affection toward the parents?
- Are those physical signs of affection returned by the child?
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
- Who is involved in schooling and homework?
- Who attends parent-teacher conferences?
- Has the child been overly tardy or absent from school without good cause?
- Did the parties agree to raise the child in a certain religion and are the parties following through with that?
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
- Is the payer of support up to date?
- Who takes the child to medical appointments?
- Are there any special medical needs that the child has? Who helps the child with medical care and administers medicine?
- Does either parent fail to give medications as prescribed?
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- Has the other party moved their residence a lot?
- Has the child’s school been changed frequently?
- Has the other party or you been involved in multiple relationships that the child was exposed to.
- Is there turmoil in the household making the environment unstable, such as domestic violence, arguing between the adults in the household, other people moving in and out of the household.
- Does the child have his or her own room and/or space to live.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
- Are the parents in the household in a permanent long term relationship, such as a marriage?
- Has there been multiple relationships or marriages on one side.
(f) The moral fitness of the parties involved.
- Has there been criminal convictions showing a party has a questionable moral past (Usually this involves crimes of dishonesty).
- Has a parent lied on the stand about anything?
(g) The mental and physical health of the parties involved.
- Does either party have a mental illness, such as depression, bi-polar, borderline personality disorder, schizophrenia, etc.
- Are both parties capable physically of caring for the child?
(h) The home, school, and community record of the child.
- Does the child participate in any extracurricular activities?
- What is the level of participation of each parent?
- What are the child’s grades? Have those grades changed since entry of the last order?
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
- This is a preference that is taken in chambers. It is not good to try to influence a child on this factor. That can become very apparent to a judge in the case, who likely has interviewed many many children.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
- Has there been a denial of parenting time?
- Has there been negative messages given to the children about the other parent?
- Were false allegations of abuse made against the other parent?
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- Are there domestic violence convictions on either side and if so was alcohol involved?
- Were there undocumented incidences of domestic violence?
- If the other party is female, has she been a victim of domestic violence and failed or refused to leave the relationship?
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
- Has either party been unwilling to cooperate and be flexible with the parenting time schedule for the best interests of the child?
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