Child Custody, Parenting Time and Child Support

                              CHILD CUSTODY, PARENTING TIME, AND CHILD SUPPORT

     About the Professor:

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law.

Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing family law including divorce, custody, parenting time, and child support in Michigan.

Dr. Baranski has been teaching since 1989. He has taught at Western Michigan University Cooley Law School, Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

 

CHILD CUSTODY:

SOLE CUSTODY: There is no legal definition for sole custody. For the purpose of the Michigan Custody Guideline, sole custody occurs when primary physical custody and legal custody are given to one parent.

Physical custody is when a parent provides most of the day to day care for the child. Legal custody is when a parent has the responsibility of making all major decisions regarding the child’s upbringing (such as medical treatment, school enrollment, religious instruction, and participation in extracurricular activities).

If the judge believes the parents cannot work together for the benefit of their child, sole custody is usually awarded to one parent. The other parent may be given parenting time, as determined by the court. If parenting time is ordered, the non-custodial parent is responsible for making routine and emergency decisions for the child during parenting time.

 JOINT CUSTODY: At the request of either parent, the court must consider ordering joint custody. If the parents agree on joint custody, the court must order it unless the court determines that joint custody is not in the best interests of the child. When deciding, judges must state on the record their reasons for granting or denying the request. Judges may consider joint custody without a parent’s request. In addition to the normal factors considered when deciding custody, with joint custody judges must also consider whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.

The statute defines joint custody in a way which provides for joint legal custody, joint physical custody, or a combination of joint legal and joint physical custody.

THE FOLLOWING ARE 2 TYPES OF JOINT CUSTODY:

JOINT LEGAL CUSTODY: Joint legal custody means that the parents share decision-making authority as to the important decisions affecting the welfare of the child. Joint custody does not depend on the amount of time the child is with each parent.

JOINT PHYSICAL CUSTODY: Means that there will be specific times when each parent will have the child with them. However, it does not mean the parents will necessarily share decision-making authority unless the judge also has ordered joint legal custody. As an example of joint physical custody, one parent could have physical custody during the school year, alternate weekends, and alternate holidays, with the other parent having physical custody during the summer months, alternate weekends, and alternate holidays. If the judge awards joint physical custody, the court order will usually include a statement regarding when the child shall reside with each parent. The court order may provide that physical custody be shared by the parents to make sure the child has contact with both parents. During the time a child resides with a parent, that parent decides all routine and emergency matters concerning the child.

CHILD CUSTODY ACT FOR PHYSICAL CUSTODY:

The following are the factors of the Child Custody Act:

(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 the continuation of the education and raising of the child in his or her religion or creed, if any.

(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.

(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 at or witnessed by the child.

(l) Any other factor considered by the court to be of relevance to a particular child custody dispute.

PARENTING TIME:

The law establishes a presumption that it is in the best interests of a child(ren) to have strong relationships with both parents. Therefore, parenting time should be of a frequency, duration and type reasonably calculated to promote a strong relationship between the child(ren) and the parent. The child(ren) has a right to parenting time unless the court determines on the record by clear and convincing evidence that parenting time would endanger the child(ren)’s physical, mental or emotional health (MCL 722.27a).

In order to determine the length, frequency and type of parenting time, the court considers several factors (MCL 722.27a).

1. The existence of any special circumstances or needs of the child.

2. Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.

3. The reasonable likelihood of abuse or neglect of the child during parenting time.

4. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.

5. The inconvenience to, and burdensome impact or effect on, the child of traveling to and from the parenting time.

6. Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.

7. Whether the parent has frequently failed to exercise reasonable parenting time.

8. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.

9. Any other relevant factors

ISSUES TO ADDRESS IN PARENTING TIME:

In order to provide the necessary structure for parenting time to occur, parenting time orders are required to be granted in specific terms if requested by a party and may contain any reasonable terms or conditions (MCL 722.27a (8)). Examples of such terms and conditions include:

1. Division of the responsibility to transport the child(ren).

2. Division of the cost of transporting the child(ren).

3. Restrictions on the presence of third persons during parenting time.

4. Requirements that the child(ren) be ready for parenting time at a specific time.

5. Requirements that the parent arrive for parenting time and return the child(ren) from parenting time at specific times.

6. Requirements that parenting time occur in the presence of a third person or agency.

7. Requirements that a party post a bond to assure compliance with a parenting time order.

8. Requirements of reasonable notice when parenting time will not occur.

9. Any other reasonable condition determined to be appropriate in the particular case.

CHILD SUPPORT FORMULA:

The State of Michigan has adopted a formula on how much the non-custodial parent will pay in child support per month to the custodial parent.

Net Income:

The first step in figuring each parent's support obligation is to determine both parents’ individual incomes. A parent’s "net income" used to calculate support will not be the same as that person’s take home pay, net taxable income, or similar terms that describe income for other purposes. The objective of determining net income is to establish, as accurately as possible, how much money a parent should have available for support. All relevant aspects of a parent’s financial status are open for consideration when determining support, services, or other noncash benefit for which the parent did not pay, if they reduce personal expenses, and have significant value or are received regularly.

Alimony and Spousal Support

(1) Income includes alimony/spousal support paid by someone who is not the other parent in the case under consideration.

(2) Alimony/spousal support paid between the parents in the case under consideration

does not get deducted from its payer’s income.

 

Potential Income

When a parent is voluntarily unemployed or underemployed, or has an unexercised

ability to earn, income includes the potential income that parent could earn, subject to

that parent’s actual ability.

(1) The amount of potential income imputed should be sufficient to bring that parent’s income up to the level it would have been if the parent had not voluntarily reduced or waived income.

(a) The amount of potential income imputed (1) should not exceed the level it would have been if there was no reduction in income, (2) not be based on more than a 40 hour work week, and (3) not include potential overtime or shift premiums.

Taxes and Deductions:

The Federal, State and Local taxes have to be deducted along with any other mandatory deductions, for example, Union Dues.

The number of dependents for each parent, and the parent’s status, [single, married, head of household] is taken into account.

Calculate Overnights:

Once the child custody is determined, the number of overnights at each household must be determined.  Then, based on the net incomes of the mother and father, the child support amount can be determined.

Example: John and Mary have two children, Joe who is 4 years old, and Jane who is 7 years old.

John and Mary have joint legal and joint physical custody. John takes home $20,000 per year. Mary takes home $17,000 per year.  Mary will be the head of household with the two children after the divorce, declaring two dependents on her income tax return. John, will be a single man without any dependents after the divorce. Mary has to pay $400 per month for child care. John has the children every other weekend, one half the holidays, and one half of the summer.  Mary, has the children most of the time for 275 overnights, and John has the children for 90 overnights.

The child support formula based on the income, number of overnights, and amount of child care would have John paying Mary $325.00 per month in child support, and $196.00 in child care for a total of $550.00 per month payable to Mary by John. Any medical expenses not paid by insurance will be paid 51% by Mary and 49% by John.

If we use the same facts, except change the number of overnights, the difference is substantial.

If Mary has 183 overnights, and John has 182 overnights, John pays Mary $13.00 per month in child support and $196 a month in child care for a total of $153.00 per month.