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FAMILY LAW 38: Trial court did not consider joint physical custody an option because both parties requested sole physical custody.

This action arises out of a custody dispute between defendant and plaintiff, who is defendant’s former girlfriend. Plaintiff and defendant have a son, MW, who was born in 2013.

From November 2016 until September 2017, the parties adhered to an informal agreement to share legal and physical custody of MW. Defendant shared a weekly split schedule with plaintiff, wherein each party had physical custody of MW for part of the week. The parties jointly made decisions regarding MW’s schooling, medical care, and living arrangements. During the summer months, the parties changed their informal parenting time agreement so that plaintiff and defendant would each have almost a full week of parenting time with MW on an alternating basis.

When MW was enrolled in preschool in the fall of 2017, defendant demanded that they maintain their summer parenting time schedule, but plaintiff did not agree. The parties experienced a breakdown in the amicable relationship they had regarding custody and parenting time, which led plaintiff to file a complaint for custody, parenting time, and child support.

As a result of the child custody action, the trial court entered an order granting plaintiff and defendant joint legal custody of MW and granting plaintiff sole physical custody of MW. The trial court also ordered a parenting time schedule that allowed both parties an equal amount of parenting time.

Before making a custody decision, a trial court is required to determine whether there is an established custodial environment with one or both parents before making any custody determination.

An established custodial environment is defined as a custodial relationship of a significant duration in which the child is provided the parental care, discipline, love, guidance, and attention appropriate to his age and individual needs; an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability and permanence.

A review of the record indicates that the trial court did not consider joint physical custody an option because it assumed that both parties requested sole physical custody.

Because the trial court found that an established custodial environment existed with both parties and acknowledged that plaintiff’s request for sole physical custody would change the established custodial environment, it held plaintiff to the appropriate clear and convincing evidence standard of proof.

The trial court found that plaintiff showed by clear and convincing evidence that granting her request for sole physical custody was in MW’s best interests.

If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights. If the divorce or separation process does not turn out like you thought it would, you may not have the custody, visitation or child support you deserve.

At the Plymouth and Ann Arbor law firm of Aldrich Legal Services, our attorneys represent parents throughout southeast Michigan with a wide range of custody-related matters.

Contact Aldrich Legal Services

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