More recently the Courts have moved away from that position and instead regularly decide that Fathers get more time with their children than they used to in a divorce action. It is thought that the several decades long social policy experiment has resulted in all sorts of problems for children who do not spend a significant amount of time with both parents. I am aware of two Circuit Court Judges in the area who state in open court that they start with the premise that each parent is entitled to half custody and they want the lawyers or parties to tell them why they should move away from that premise.
This premise can often result strange custody arrangements such as an award of the first three weekends per month to Father from Thursday after school to Monday morning and the rest of the time with Mother. While not equal time (9 overnights for Father vs 21 for Mother), the arrangement does allow Father more significant time with his kids than every other weekend but has the unintended result of providing that Mother do most of the work and Father have most of the fun.
The Courts use the Child Custody Act to determine custody disputes. That law in Michigan is:
722.23 “Best interests of the child” defined.Sec. 3.
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.
(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 against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
What this means is that in a custody trial, the Court will actually weigh the evidence making a determination for each parents who is better able to do each of the factors above. A sort of list down the page with two sub heads, Father and Mother on the horizontal axis and "a" through "i" on the vertical axis. At the end of the page the totals are added up and the party who has more points or who is better able - wins. However, the court can and does attribute more or less weight to any of the factors it determines appropriate in the circumstances.
Before the court gets to that analysis, it looks to whether there is an "established custodial environment". If there is an established custodial environment in place, the moving party, that is the parent trying to change the current arrangement has the burden of showing there has been a "change in circumstances" sufficient to warrant the court to look into the issues set forth in the child custody act. In other words, if the parents have an arrangement whereby Dad visits every other weekend, and Dad wants more time, he must show that something significant has changed. If the judge determines that a custodial environment has been established, the Judge can only change custody if it is clear and convincing that there has been a significant change in circumstances and that it is in the best interest of the children to change custody.
And it is the moving parties' burden to show by clear and convincing evidence that there has been a change in circumstances. (Clear and convincing evidence is the middle burden in Michigan Law. The lowest burden being "Probable Cause" or "Preponderance" - more than 50% and "Beyond a Reasonable Doubt" being the highest burden). Burden means that the moving party has to show. The non-moving party theoretically does not have to do anything.
There is a move afoot in Michigan as well as other states to make joint custody a matter of law. Robert Kerr of Lansing, launched an effort to require circuit courts to award joint child custody unless there's convincing legal evidence that one of the parents is unfit. He was unable to collect 304,100 signatures to get the matter on the fall ballot.* This matter has been coming for quite some time from the Father's rights advocacy crowd.
