All custody disputes in Michigan are governed by state statute. Specifically, these requirements are set forth in the Child Custody Act of 1970 (MCL 722.21 et. seq.).
In Michigan, there are two types of custody: legal custody and physical custody. Both types of custody must be explicitly addressed by the courts and awarded between the two parents.
Legal custody is defined in MCL 722.26a as the “decision-making authority as to the important decisions affecting the welfare of the child.” Generally speaking, this means that one or both parents are designated with the responsibility to make major decisions regarding the children’s upbringing and well-being, including decisions regarding religion, medical treatment, education, and extracurricular activities.
Physical custody relates to which parent(s) the child or children will live. While there will often be a label attached to the physical custody arrangement, such as “joint physical custody,” or “primary physical custody” to one parent, parents should not be consumed with the label. The real importance regarding physical custody lies in the details of the specific parenting time arrangement.
Sole vs. Joint Custody
Both legal and physical custody can be awarded jointly to both parents, or solely or primarily to one parent over the other. MCL 722.26a holds that, if custody is disputed, all parents must be advised of joint custody. The statute further requires that if either parent requests an award of joint custody, the Court must consider such an award. Additionally, the Court must determine whether an award of joint custody is in the best interests of the child, and must state its reasons for either granting or denying the request on the record.
The Court can award a variety of different custody arrangements, depending on the facts and circumstances of each case. In regards to legal custody, Courts will typically award either joint legal custody to both parents, or sole legal custody to one parent.
With physical custody, however, the terminology used is widespread. Michigan Courts have been known to award joint physical custody, sole physical custody, or primary physical custody. The label of the physical custody award is of little legal import in relation to other factors. What parents are counseled to focus on with respect to physical custody are the details regarding the parenting time arrangement – that is, where the children will reside on a day to day basis.
It should be noted that legal custody refers to the responsibility of making important decisions for the minor children. It does not in any way detract from a parent’s right to have access to information regarding his or her children. According to MCL 722.30, the Child Custody Act explicitly states that noncustodial parents are not to be denied access to records (e.g., school and medical records) or other information regarding the children, unless specifically prohibited by a protective order.