Michigan Child Custody Agreement
Michigan has no parenting plan, so what parents agree on has to be written to work as clauses of the custody order itself.
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Introduction
Michigan gives an agreement between parents unusually strong statutory weight. MCL 722.26a(2) provides that if the parents agree on joint custody, the court shall award joint custody unless it determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child. MCL 722.27a(2) says the same thing again for parenting time: if the parents agree on parenting time terms, the court shall order those terms unless it makes the same on-the-record finding at the same standard. Both duties are narrow in scope, attaching to an agreement on joint custody and to agreed parenting time terms rather than to any arrangement two parents sign. The second thing to know is structural: Michigan has no parenting plan. There is no separate plan document parents file, in any proceeding, so the terms have to be drafted to sit inside the custody judgment or order, which Michigan's court rules and statutes require to carry specific clauses whether the parents thought of them or not.
Key Things to Know
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Agreeing raises the bar the court has to clear to do something else. Under MCL 722.26a(2), where the parents agree on joint custody the court shall award joint custody unless it determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child. MCL 722.27a(2) mirrors that for agreed parenting time terms. Clear and convincing evidence is a demanding civil standard, and the finding has to be made on the record rather than assumed.
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That duty is narrower than it first sounds. MCL 722.26a(2) is keyed to an agreement on joint custody, and MCL 722.27a(2) to agreed parenting time terms. An agreement that one parent will have sole custody does not carry the same statutory command, so an arrangement drafted as joint custody plus agreed parenting time is drafted onto the provisions that do the work.
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Michigan has no parenting plan. There is no plan document that parents prepare and file, and the Child Custody Act contains no parenting plan section. What Michigan prescribes instead is the contents of the order, so the drafting target is the custody judgment or order that the court will enter, not a separate plan attached to it.
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Several clauses have to appear in the order regardless of what the parents discussed. MCR 3.211(C)(1) requires every custody judgment to provide that the child's domicile or residence may not be moved from Michigan without the approval of the judge who awarded custody or that judge's successor. MCR 3.211(C)(2) requires the parent awarded custody to promptly notify the friend of the court in writing when the child moves to another address, and MCR 3.211(C)(3) bars changing the child's legal residence except in compliance with MCL 722.31. MCL 722.27a(10) requires a parenting time order to prohibit exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction unless both parents consent in writing.
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MCL 722.31(5) turns the residence question into a drafting decision. Every order determining or modifying custody or parenting time must state the parents' agreement about how a change in either parent's legal residence will be handled, and where the parents have not agreed, the court inserts the statutory provision itself. Parents who work this clause out in advance decide the rule that will govern them later.
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Best interests in Michigan is a defined term, not a general standard. MCL 722.23 provides that best interests of the child means the sum total of twelve factors, lettered (a) through (l), and Michigan courts address them one by one on the record. The list has no including but not limited to preface, so it is closed apart from factor (l), which is any other factor the court considers relevant to a particular dispute. On an agreed arrangement these twelve are best read as the test the agreement has to survive.
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Domestic violence enters Michigan's analysis as a named best-interest factor. Factor (k) at MCL 722.23 is domestic violence, regardless of whether the violence was directed against or witnessed by the child, and factor (j), which looks at facilitating the child's relationship with the other parent, carries a carve-out providing that a court may not consider negatively any reasonable action a parent took to protect a child or themselves from sexual assault or domestic violence by the other parent. It also appears among the parenting time factors at MCL 722.27a(7)(d) and (7)(h) and among the relocation factors at MCL 722.31(4)(e). Where there has been abuse or a protective order, this is a situation to raise with a lawyer rather than settle on a form.
Key decisions before you file
Before you file a Child Custody Agreement in Michigan, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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Michigan Requirements for Child Custody Agreement
Where the parents agree on joint custody, the court shall award joint custody unless it determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child. The document should record the agreement in those terms so the provision plainly applies.
Where the parents agree on parenting time terms, the court shall order those terms unless it determines on the record by clear and convincing evidence that they are not in the best interests of the child. Michigan uses parenting time rather than visitation, and the schedule should be stated as agreed terms.
Joint custody means an order specifying that the child resides alternately for specific periods with each parent, or that the parents share decision-making authority over important decisions affecting the child, or both. Because Michigan defines only this term and not legal or physical custody, the document should say which limb or limbs are intended.
Best interests of the child means the sum total of twelve factors lettered (a) through (l), addressed individually by the court. The list carries no including but not limited to preface and is closed apart from factor (l), which reaches any other factor the court considers relevant.
A custody judgment must provide that the child's domicile or residence may not be moved from Michigan without the awarding judge's approval, that the parent awarded custody will promptly notify the friend of the court in writing when the child moves to another address, and that neither parent will change the child's legal residence except in compliance with MCL 722.31.
Every order determining or modifying custody or parenting time must state the parents' agreement about how a change in either parent's legal residence will be handled. Where the parents have not agreed, the court inserts the statutory provision, so agreeing on this clause in advance is a real drafting decision.
A parenting time order must prohibit a parent from exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, unless both parents consent in writing. Include the clause and any agreed written-consent procedure.
A parent may not change the child's legal residence to a location more than 100 miles from the child's legal residence at the commencement of the action in which the order was issued, absent the other parent's consent or the court's permission after applying the five factors at MCL 722.31(4). The section does not apply where sole legal custody is awarded, where the residences were already more than 100 miles apart, or where the move brings them closer.
A court may not modify an order in a way that changes the child's established custodial environment absent clear and convincing evidence that the change is in the child's best interest. The environment is a finding of fact rather than a label the parents choose, and an agreed schedule is often what creates it.
Agreed terms take effect only on entry. MCR 3.223 provides a summary consent route on a joint petition with a separate domestic violence screening form for each parent under MCL 691.1345, a hearing no sooner than 60 days after the notice of filing, and dismissal if either parent objects before entry. Where terms are settled on the record in an existing case, the judgment is submitted within 21 days under MCR 3.211(F)(1).
Frequently Asked Questions
The court's ordinary discretion becomes a duty. MCL 722.26a(2) provides that if the parents agree on joint custody, the court shall award joint custody unless it determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child. MCL 722.27a(2) sets out the same rule for agreed parenting time terms. Both provisions are keyed to those specific agreements, so an agreement that one parent will have sole custody does not carry the same statutory command.
Yes. The Child Custody Act applies to all circuit court child custody disputes and actions, whether original or incidental to other actions, under MCL 722.26(1), and custody is fixed by the court's judgment or order under MCL 722.27(1)(a). Until the court enters the agreed terms, there is nothing to enforce and no order to hold either parent to. The clear and convincing standard in MCL 722.26a(2) describes how hard it is for a court to depart from what the parents agreed, not whether a court has to be involved.
No. Michigan has no parenting plan concept. There is no separate plan document parents prepare and file, in agreed or contested cases, and the Child Custody Act contains no parenting plan section. What Michigan does prescribe is the contents of the custody judgment or order, so the terms parents work out should be drafted so they can be entered as provisions of that order.
MCL 722.23 defines best interests of the child as the sum total of twelve factors lettered (a) through (l), which the court considers, evaluates, and determines. Michigan courts work through them individually on the record, which is why practitioners refer to them by letter. Factor (k) is domestic violence, regardless of whether the violence was directed against or witnessed by the child. Factor (l) is any other factor the court considers relevant to the particular dispute, which is the only opening in an otherwise closed definition.
Beyond the terms the parents choose, several clauses are required. MCR 3.211(C)(1) requires that the child's domicile or residence not be moved from Michigan without the approval of the judge who awarded custody or that judge's successor. MCR 3.211(C)(2) requires the parent awarded custody to promptly notify the friend of the court in writing when the child moves to another address, and MCR 3.211(C)(3) bars changing the child's legal residence except in compliance with MCL 722.31. MCL 722.31(5) requires the order to state the parents' agreement about how a change in legal residence will be handled, and MCL 722.27a(10) requires a parenting time order to prohibit parenting time in a country that is not a party to the Hague Convention unless both parents consent in writing.
There are two routes. Where custody is decided as part of a divorce or another action, the agreed terms are drafted into the judgment, which has to satisfy MCR 3.211, and under MCR 3.211(F)(1) the moving party submits the judgment within 21 days after the settlement agreement is placed on the record. Where there is no existing case, MCR 3.223 provides a summary proceeding for entry of a consent judgment or order: both parents file a joint petition with the signed proposed consent judgment attached, the petition serves as both complaint and answer, each parent files a separate domestic violence screening form under MCL 691.1345, and the clerk schedules a hearing no sooner than 60 days after the notice of filing. Both petitioners must attend, and if either parent objects to the summary proceeding at any time before entry, MCR 3.223(C)(5) requires the court to dismiss the case.
It is a finding of fact about where the child looks for guidance, discipline, the necessities of life, and parental comfort, and it is the concept that governs whether an arrangement can later be changed. MCL 722.27(1)(c) prevents a court from modifying an order in a way that changes the established custodial environment unless there is clear and convincing evidence that the change is in the child's best interest, and MCR 3.210(C)(1) requires an evidentiary hearing before the court resolves a contested motion that would change it. This matters to agreeing parents because the schedule they agree to is often what creates the environment, which can then make the arrangement hard to change later.
Two separate rules apply. MCL 722.31 bars changing the child's legal residence to a location more than 100 miles from the child's legal residence at the time the action in which the order was issued was commenced, unless the other parent consents or the court permits the move after applying the five factors at MCL 722.31(4). The section does not apply where the order grants sole legal custody to one parent, where the two residences were already more than 100 miles apart when the action began, or where the move brings them closer together. Separately, MCR 3.211(C)(1) requires the judge's approval for any move of the child out of Michigan at any distance. Michigan sets no advance notice period for either rule.
It is a named factor the court weighs. Factor (k) at MCL 722.23 is domestic violence, regardless of whether the violence was directed against or witnessed by the child, and factor (j) carries a carve-out providing that a court may not consider negatively any reasonable action a parent took to protect a child or themselves from sexual assault or domestic violence by the child's other parent. Domestic violence also appears in the parenting time factors at MCL 722.27a(7)(d) and (7)(h), and in the relocation factors at MCL 722.31(4)(e). Separately, MCL 722.25(2) and MCL 722.25(6) impose bars keyed to criminal sexual conduct convictions, which are a different thing from the domestic violence factors.
No. Support is a separate calculation with its own rules, and MCR 3.211(D) requires any child support or spousal support terms to appear on the Uniform Support Order that accompanies the judgment rather than in the body of the custody terms. Work out the parenting arrangement and the support question separately, and do not assume that agreeing to a schedule resolves either parent's support obligation.