Fresh from the Michigan Judges Bench Book.
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Factors to Be Considered in Determining Parenting Time when not ever married or in Divorce or after Michigan, Flint and Genesee County . @terrybankert 810-235-1970 Attorney Terry Bankert
A. In General
If the parents can agree on parenting time terms, those terms will be ordered by the court. MCL 722.27a(2). This assumption does not apply if the court determines on the record by clear and convincing evidence that the terms are not in the “best interests of the child.” Id. The Michigan Supreme Court issued an Order in Herschfus v Herschfus, 481 Mich 887, 749 NW2d 714 (2008), remanding the matter back to the trial court for entry of a parenting time order that sets a parenting time schedule incorporating the father’s religious observances “in accordance with the parties’ agreement regarding the child’s upbringing.”
In general, the guiding principle for establishing parenting time is that any terms be “in accordance with the best interests of the child.” MCL 722.27a(1); see Thames v Thames, 191 Mich App 299, 477 NW2d 496 (1991). It is presumed that it is in the best interests of a child to have a strong relationship with both parents. MCL 722.27a(1). MCL 722.23 defines the phrase best interests of the child; see §4.6. This is the same definition used in determining custody. See Daniels v Daniels, 165 Mich App 726, 418 NW2d 924 (1988).
MCL 722.27a(6) also provides specific factors that the court may consider when determining the frequency, duration, and type of parenting time to be granted;
Note that a court’s award of joint legal and physical custody does not require a parenting time schedule where the children spend 50 percent of their time with each parent. Diez v Davey, 307 Mich App 366, ___ NW2d ___ (2014).
B. The Best Interests Factors
1. Findings Required
The court must make adequate findings and conclusions in support of the parenting time decision.Arndt v Kasem, 156 Mich App 706, 710, 402 NW2d 77 (1986) (court failed to address issues in contest or best interests factors). See also MCR 2.517(A)(1), which generally requires definite findings of fact and conclusions of law. However, there is a split of opinion as to whether the trial court must evaluate each of the best interests factors and make findings of fact and conclusions of law in parenting time disputes. Cases finding that the trial court must make specific findings of fact in parenting time cases includeDaniels v Daniels, 165 Mich App 726, 418 NW2d 924 (1988), and Dowd v Dowd, 97 Mich App 276, 293 NW2d 797 (1980). However, in Hoffman v Hoffman, 119 Mich App 79, 326 NW2d 136 (1982), findings of fact and conclusions of law were required only on those issues that were contested.
Where the court accepts the parties’ agreement regarding parenting time, there is no contested case and the trial court does not need to expressly articulate each of the best interests factors. “Implicit in the court’s acceptance of the parties’ agreement is its determination that the arrangement is in the child’s best interest.” Koron v Melendy, 207 Mich App 188, 192–193, 523 NW2d 870 (1994); see also MCL 722.27a(2).
2. The Factors
The Child Custody Act defines the phrase best interests of the child as follows:
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.
(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.
© 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.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(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.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.