What are the Primary Types of Custody?

The two primary types of custody are legal and physical custody.

Legal custody refers to the guardian who makes the important decisions for the child, such as healthcare, residence, religious teachings, education, and social activities. Physical custody refers to where the child lives and sleeps.

Both of these custody types can be joint or sole. This means that both parents may have joint legal custody while only one parent has sole physical custody.

How is Child Custody Determined?

Child custody will be decided by a court, either as part of a divorce case, child custody case, paternity case, or child support matter.  It is possible for child custody to be by agreement, or it may be determined through the office of the Friend of the Court.  You may also use other forms of mediation to work out an agreement, or may even do a psychological evaluation to help determine custody when it is contested. If custody is evaluated by the friend of the court, or part of the legal system, then the evaluator will  conduct a custody evaluation, investigate all relevant facts, and provide a written report and recommendation to the court and parents regarding child custody. The evaluator could be a referee at a court, or a psychologist, or a social worker, family counselor, or even a lawyer. 

Only Friends of the Court and domestic relations officers are allowed to provide recommendations to the judge. Family court decisions, as per law, are decided based on the best interests of the child. To uphold this law, the court will take into account all presented facts regarding the requirements of the Child Custody Act.

A hearing must be held when parents cannot agree on custody matters and would like the court to adopt a settlement or consent decree. If parents disagree with the judge’s decision, they may appeal.

What Factors Are Used to Determine Child Custody?

A judge must heavily consider the following factors when determining what is in the best interest of the child:

  • Love, affection, and other emotional ties between the involved parties and the child
  • The ability of the involved parties to give the child love, affection, and guidance and to continue educating and establishing the religion or creed of the child
  • The willingness and capacity of the involved parties to provide the child with food, clothing, and medical care
  • The duration of time that the child has lived in a stable, satisfactory environment and the desirability of continuing it
  • The permanence, as a familial unit, of the existing or proposed custodial home or homes
  • The moral fitness of the involved parties
  • The mental and physical health of the involved parties
  • The child’s record at home, school, and within their community
  • The reasonable preference of the child, if the judge deems the child old enough and responsible enough to express their preference
  • The willingness of the involved parties to facilitate and encourage a close relationship with the child and the other parent
  • Domestic violence by either parent, regardless of if the violence was directed toward or witnessed by the child
  • Other factors the judge may consider relevant:
    • The special needs of the child and how each parent cares for those needs
    • Threats of kidnapping the child by either parent
    • Whether either parent has missed visits or failed to return the child from visits
    • Siblings or other children whose custody is relevant to this child’s custody arrangement
    • The relationship between significant others or new spouses of either parent whose relationship affects the child
    • The possibility of separating siblings
    • The distance between both parents’ residences 

What Additional Factors May Hinder or Delay a Father Having Custody?

Several circumstances can significantly complicate a child custody case. For more information, contact an attorney at ADAM, American Divorce Association for Men. 

  • Lack of established paternity: The easiest way to establish paternity is with an Affidavit of Parentage during the child’s birth. This affidavit can be signed without a DNA test or court order. A father may also prepare an affidavit any time after the birth of the child. Without this form, a father will have no legal standing to seek full custody.
  • Ongoing family law case: If the father is involved in an ongoing family law case involving the child, then a custody determination should be part of that case. A father may file a Motion Regarding Custody in addition to the existing case to seek or amend a child custody order.
  • The child’s mother was married to another man while pregnant: A father is not permitted to use an Affidavit of Parentage to establish parenting if the mother was legally married to another man while pregnant or after the child is born. Husbands are presumed to be the legal fathers of any children who are born during the marriage. A biological father may only revoke a husband’s paternity claim through a court order. To obtain custody in this situation, the father must file a Motion to Determine Child Born Out of Wedlock prior to establishing paternity, obtain an Affidavit of Parentage, and then seek full custody of the child.

When Can a Father Apply for Custody?

According to the Michigan Child Custody Act, both parents are entitled to equal rights to physical and legal custody of their child. However, historically, fathers are often granted less time with their children or relegated to only paying child support. 

Fathers may file for custody if one of the following situations is relevant:

  • The parents are not married, and the father has an Affidavit of Parentage: An Affidavit of Parentage is a document prepared at the time of the child’s birth that the mother and father sign as a formal declaration that the man who signed the form is the child’s father. This affidavit can be used to establish paternity in a child custody case.
  • The parents are married but living separately with no intention of filing for divorce or separate maintenance: Legal proceedings for divorce or separate maintenance involve child custody determinations, which makes a separate custody case redundant. However, when parents live apart and are not pursuing other family court matters, a request for custody may be presented.

Do You Need an Attorney?

As a father, you are already at a significant disadvantage in acquiring primary child custody. At ADAM American Divorce Association, we are committed to offering you the best chances for reunification with your child. Call us today at 248-290-6675 or complete a contact form to schedule your consultation.