Domestic violence affects a third of all families in Michigan to one extent or another. It is understandable that where persistent domestic violence has been a feature in a family where there are children that it could affect decisions about child custody and visitation rights if parents separate. This article seeks to outline the way Michigan family law courts make decisions about child custody, especially if there have been incidents of domestic violence.
Defining domestic violence
Note that the term “domestic violence” covers a range of negative behavior that can happen within a family. It might be that it is one parent that has been systematically violent towards the other parent. It might be physical or emotional violence, or both. It might be that both parents have been violent towards each other. It might be that children have been the victims of violence by one or both parents.
Michigan courts must evaluate each case individually and in every case make a custody or visitation rights decision based on the best interests of the children.
Note that even if there has been a history of domestic violence within a family it doesn’t necessarily mean that custody or visitation rights are not given to the person who is identified as the violent one. This is because the history of domestic violence is only one of many factors that a court uses to make a decision about the best interests of a child.
Factors that a Michigan court uses to decide on child custody
In Michigan, it is generally encouraged for separating or divorcing parents to come to an amicable agreement about who looks after their child(ren), and when and under what circumstances visitation is allowed. It is usually only when parents cannot come to an amicable agreement or where one parent has made it known that there has been a history of domestic violence either towards one or another of the parents or to the child (ren) that a court becomes involved and ultimately a decision is made by a judge.
A Michigan family court may take any or all of the following factors into consideration:
- whether there has been any domestic violence and what this has involved;
- the ability of either parent to care for the child(ren) financially, including housing, food, clothing etc;
- the bond between the child and a particular parent (preference shown by the child);
- the moral fitness of the parent;
- the ability of the parent to provide education and religious upbringing (if any) for the child;
- the physical and mental health of each parent;
- any other factors that the court decides to regard as relevant.
Modifications to custody or visitation decisions
Custody and visitation rights are not cast in stone and although courts generally discourage changes in court orders, they may be changed if the circumstances of either parent change. Whatever the changes requested or decisions challenged, the court will always act on the presumption that it is putting the best interests of the child(ren) first. That means looking at all of the factors mentioned above and coming to what can be a difficult conclusion, one which may be resented by one of the parents, and even by one or more of the children.
When considering a modification in custody or visitation rights, a court will first establish whether there has been an “established custodial environment” or ECE, in existence. The court will be reluctant to modify the existing arrangement if a child has been well looked after in a stable environment already. If there is no real evidence that an ECE has been established after the divorce or separation took place, then the court will be more likely to look for an alternative arrangement which will be to the child’s benefit.
Do you need help deciding on custody for your child or are you concerned that a court may not take a history of domestic violence sufficiently into account when deciding visitation rights? Talk to a sympathetic and knowledgeable child custody attorney at Abood Law in Birmingham or East Lansing, Michigan. You can contact one of our family law attorneys at 517.332.5900(East Lansing) or 248.549.0000 (Birmingham).