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Can Children Express Preference in Michigan Custody Proceedings?

January 11, 2022 John Engman & Associates

Can Children Express Preference in Michigan Custody Proceedings?

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Divorce affects all family members, especially the children.  Children of divorce make things much more complicated.  Separating parents have the difficult decision of what custody agreement is best for their family.  This, at times, can be decided between the parties and agreed upon.  However, many times it is difficult for the parents to agree.  They must keep what is best for the child or children and not exactly is best for them.  When the parents cannot agree, then it is time to take it to court and let them decide.  The courts will take into account many deciding factors such as:

  • Either parent’s history of domestic violence
  • Each parent’s willingness to encourage a relationship between the child and the other parent
  • The child’s home, school, and community history
  • Each parent’s physical and mental health
  • Each parent’s moral fitness
  • The stability of each parent’s home
  • Each parent’s ability to provide the child with food, clothing, and medical care
  • Each parent’s ability to give the child love, affection, guidance, and continue the education and religion of the child
  • The love, affection, and other emotional ties between the parents and the child
  • the child’s preference could be considered if all of the above is equal between the parties.  (Mich. Comp. Laws § 722.23)

Do Children Have to Testify About Their Custodial Preferences in Court?

Testifying in court can be psychologically harmful to children. Because of this, the judge typically will not have the child or children testify.  Instead, they may take a minute to speak with them in their chambers, one on one, to see what the children have to say about what arrangement they would like and why.  Keep in mind that this is only one factor that goes into the overall decision of custody.  They do not have to allow the attorneys to be present during this meeting.  It is very informal for the judge to get to hear what the children have to say.  

During this time, they also don’t have to allow court reporters in the chambers, according to the Michigan laws.  

Most of the time, judges will rely on another branch of the court, the Friend of the Court (FOC), to interview parents and the children with a FOC investigator.  This is usually a trained social working or attorney that will look out for the children’s best interest.  They will weigh in all the best interest factors to determine what would be best in this situation.  Each situation is completely different, and you shouldn’t consider what your friend or a family member has gotten in the past.  Your situation is custom to you and your family’s circumstances.  

Each county is a little different.  However, most Michigan counties will utilize FOC and get a recommendation in writing that takes into consideration the custody factors.  This written recommendation will be shared with all parties and the judge.  Each party can take the time to look over the recommendation and object to it within 21 days.  This must be done in time to be considered to have the judge hear your case as to why you object.  

Why Does the Court Consider the Child’s Preference?

Having the child express their opinion and wants will depend on the judge and the child’s maturity level.  

While many people think that once the child reaches a certain age, they are able to decide on their own who they live with.  However, this is only one of the many deciding factors for determining custody of the child. A judge will go over all determining factors. This is only one piece of the puzzle.

If the child’s best interest is clear and there aren’t many factors swaying the other way, the child’s preference might not be considered. However, if both households are equal, the child’s preference may be the deciding factor.  (Mich. Comp. Laws § 722.25 (1)) There are several factors that the judge will take into consideration for custody issues. These can be found here.

We work with parents to come up with a solution that will work with your schedule.  While we do our best to negotiate and keep the cases out of court, there are times that this is inevitable.  Things such as what religion your child will practice to disclosing of assets are all apart of the divorce process that will be discussed.

At John Engman & Associates, P.C., our Michigan divorce attorneys will do everything in their power to help you through this difficult time To request a consultation with one of our Grand Rapids, MI drug lawyers, give our office a call at (616) 454-5222.