Michigan Child Custody Agreement

Introduction

Key Things to Know

1. 1

   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.

2. 2

   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.

3. 3

   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.

4. 4

   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.

5. 5

   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.

6. 6

   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.

7. 7

   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.

Michigan Requirements for Child Custody Agreement

• Agreed Joint Custody, 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. The document should record the agreement in those terms so the provision plainly applies.

• Agreed Parenting Time Terms, MCL 722.27a(2)

  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.

• Definition of Joint Custody, MCL 722.26a(7)

  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 Interest Factors, MCL 722.23

  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.

• Required Order Clauses, MCR 3.211(C)

  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.

• Residence-Change Provision, MCL 722.31(5)

  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.

• Hague Convention Clause, MCL 722.27a(10)

  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.

• Relocation Restriction, MCL 722.31(1) to (6)

  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.

• Established Custodial Environment, MCL 722.27(1)(c)

  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.

• Entry of a Consent Judgment, MCR 3.223 and MCR 3.211(F)(1)

  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).