GENERAL LEGAL ISSUES AFFECTING CHILDREN
 Custody
There are two major variations of legal custody sole custody or joint custody. Joint custody means that the parents share decision making for the child. The law defines the term joint custody, as “(a) that the child shall reside alternately for specific periods with each of the parents and (b) that the parents shall share decision-making authority as to the important decisions affecting the welfare of the child. Joint custody does not eliminate the responsibility for child support. Nor does it modify a support order or effect the parenting time of each parent. Sole custody means that the primary decision-making is done by one parent.
The Family Courts determines child custody issues under the Michigan Child Custody Act. The judge is required by law to make custody decisions in the “best interests of the child”. The “best interest of the child” is defined by law as the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
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Support
Every child has the right to be supported by both parents. Likewise, every parent has a duty to support their children.
Child support is based mainly on the child's needs and both parents' income and ability to pay support. The amount of child support is also affected by the number of children to be supported. Child support is paid until the child reaches age 18 or graduates from high school but not beyond 19 years and six months of age, whichever occurs later.
In Michigan, child support is usually calculated using the "child support guidelines” Courts can determines that there are special circumstances which require child support in an amount different from what the guidelines would require.
Extended parenting time may also effect the amount of child support.
More information about child support can be found at the Michigan's Friend of the Court Web site.
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 Parenting Time
Michigan law provides that each child has the right to a meaningful relationship with both parents. The Family Court may order parenting time only in certain cases. These are cases of divorce, family support, paternity, and custody. Where a child’s parents are living apart and the Family Court has jurisdiction, a parenting schedule needs to be developed so the child has time with each parent. If both parents agree upon a parenting time schedule, the court will normally adopt it, unless there is clear and convincing evidence that parenting time will be harmful to the child. If parents cannot agree, the court will decide upon a schedule. Mediators and parenting time coordinators may be helpful in assisting parents to know the available options and develop a mutually agreeable schedule.
It is important that each parent look at their children's individual needs and their ability to follow the proposed parenting time when creating a schedule.
The Family Court may changes parenting time if it finds by a preponderance of the evidence that the change in parenting time is in the best interests of the child.
More information about parenting time can be found at the Michigan's Friend of the Court Web site.
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Changing Custody
A child has a right to a stable life. The objective of custody is to provide a long term stable environment for a child. The law refers to this as an established custodial environment. Once a custody order has been entered, the judge may not lightly change the custody order. A motion for change custody is required before the court will investigate if there is a change in circumstances and reassess the child custody best interest factors. The Family Court must find that there has been a significant change in the circumstances since the last court order such that it affects or may affect important aspects of the child's life. If the court finds a change in circumstances, only then does the court determine the best interests of the child before ordering a change in the custody arrangement.
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Parents Moving
If a Family Court issued custody order provides for "joint legal" custody, the law forbids the parent having the placement of a child from moving the child more than one hundred (100) miles away without permission of the court. Multiple factors must considered by the judge before decision is made to allow one parent to move the child far away from the other parent. The intent of this law is to prevent parenting time from becoming extremely difficult or even impossible.
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Stepparent Adoption
The primary purpose of a Step-parent adoption is to allow a stepparent to adopt a child where they provide the material and emotional support to a child that is expected of the child's legal parent. Yet the non-custodial parent has essentially abandoned the child and refuses to, or is unavailable to, consent to the adoption. Seeking a step-parent adoption involves more than just filing an adoption petition with the Court. Only if proper grounds exist and are proven can a Court grant such an adoption. First, one of a child’s biological parents must have remarried. Second there must be a legal father. This means that either the child’s birth parents are divorced or if never married, the father has either acknowledged paternity, or a Court has determined paternity. A stepparent adoption is one in which the biological non-custodial parent either consents to the termination of their parental rights or parental rights are involuntarily terminated. Under Michigan law, a Court can terminate parental rights if both of the following occur:
(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition and
(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition.
Proof of one element without the other is insufficient. The petitioner must prove by clear and convincing evidence that termination of parental rights is warranted. If a Court has already entered a child support order, the petitioner only needs to prove substantial failure to comply with the support order for two years prior to filing the petition. Since the other parent’s ability to pay support has already been factored into the order, the petitioner is not required to prove the ability to pay exists. Michigan Courts have decided that telephone calls and letters (or the lack of them) can be used as proof that the biological non-custodial parent maintained contact, or communication with the child.
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Grandparent Visitation
There is a new law in Michigan, signed in January 2005, that provides grandparents the right to come to court and request court ordered access to their grandchildren if the have been unreasonably denied the opportunity of seeing their grandchildren. There are several situations were a grandparent has legal standing to go into Family Court to seek visitation with a grandchild. First, there is a divorce, separate maintenance, or annulment action pending or finalized between the grandchild’s parents. Second, the grandchild was born out-of-wedlock and the parents are not living together. This only applies, however, to grandparents of the alleged father if he is the established legal father and he provides child support. Third, legal custody of the grandchild has been given to a person other than the child’s parent or the child does not live in the parent’s home. Fourth, the grandchild’s parent, i.e. the child of the grandparent, is deceased.
At the hearing, the Family Court judge will presume that a “fit” parent’s decision to deny a grandparent visitation request does not create harm to the child’s mental, physical or emotional health. The grandparent has the burden to show the court by a preponderance of the evidence that the parent’s decision to deny visitation does create harm. If the grandparent does not prove this to the court by preponderance, the court will dismiss the grandparent’s petition. The law provides that if two “fit” parents sign an affidavit opposing a grandparent visitation request, then the court shall dismiss a grandparent’s request for visitation. This does not including a stepparent’s signature.
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Paternity
Paternity means fatherhood. Establishing paternity provides the child with a legal father.
The simplest way to establish paternity is for both parents to sign an Affidavit of Parentage form. This is available free of charge in the hospital when the child is born. After the Affidavit of Parentage form is completed it must be recorded with the Department of Community Health. By signing the form, the paternity of the child is legally established.
Another way to established paternity is by filing a paternity case in the Family Court. If the alleged father refuses to acknowledge paternity, the mother or the Michigan Department of Human Services (if the child is receiving public assistance) may bring a paternity suit to have the matter resolved. The alleged father is entitled to a hearing in Family court to prove whether or not he is the father. If DNA testing is overwhelmingly positive, the court may enter an order establishing paternity without taking additional evidence.
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Personal Protection Orders
Every child is entitled to a home situation free of violence. Sometime to achieve this, one parent must seek help from the Family Court for a personal protection order. Protection orders against domestic violence are in addition to the protections given by the criminal law. According to the National l Center for State Courts, approximately one month after receiving a personal protection order, three quarters of the study participants reported that the order had a positive effect on their sense of well-being. After six months, the proportion of participants reporting life improvement increased to 85%. In a majority of cases, personal protection orders deterred repeated incidents of physical and psychological abuse. In Michigan, the personal protection order or “PPO.” was created by the Legislature in 1994. PPO’s evolved from earlier forms of injunctive relief against domestic violence. Domestic relation PPO”s” protects individuals who live or have lived with the abuser, have a child in common with the abuser, or who have a past or present marriage or dating relationship with the abuser. PPOs are available to restrain a broad range of abusive behavior. A PPO can restrain behaviors that interferes with the petitioner’s personal liberty, or that causes a reasonable apprehension of violence, including stalking. Among other things, a PPO may enjoin going onto the petitioners premises, assaulting, attacking, beating, molesting, or wounding a named individual, threatening to kill or physically injure a named individual, removing minor children from the individual having legal custody of the children, purchasing or possessing a firearm, interfering with petitioner at petitioner’s place of employment or education, harassment or stalking.
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Emancipation
Emancipation is the process by which a minor between the age of 16 and 18 can be freed from his or her parents' legal control and supervision. A minor seeking emancipation must file a petition for emancipation in the family division of circuit court in the county where the minor resides. To begin a proceeding for emancipation, you (the petitioner) must be at least 16 years of age. Complete the Petition for Emancipation, form PC 100, and file it with the circuit court in the county where you live.
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School Suspensions & Expulsions
Michigan law places responsibility on each student to attend school on a daily basis, and on each parent or guardian to send their child to school on a daily basis. Reasonable behavior is expected of all members of the community, including students in school.. Students have constitutionally protected freedoms in school, as long as their conduct does not intrude upon the freedom of others. This applies especially to the freedom of fellow students to receive instruction. The law recognizes a balance between individual freedom and the orderly operation of a classroom.
A teacher may issue suspensions for up to one day if the teacher has good reason to believe that the student is engaged in disruptive behavior.
The principal or assistant principal may issue short-term suspensions. A short-term suspension occurs when a student is suspended for one (1) school day, up to and including ten (10) school days. If a short-term suspension is contemplated, the student has a right to know the allegations and be provided with an opportunity to explain or refute them.
Michigan law requires suspension or expulsion for possession of a dangerous weapon, arson, criminal sexual conduct on school grounds, and physical assault against a school employee. physical fighting and assaults against other students (even if no weapon was involved), and verbal assaults against school employees or volunteers.
The district’s board of education may issue long-term suspensions or expulsions. A long-term suspension is when a student is suspended for more than ten (10) school days. An expulsion occurs when the school district’s board of education terminates the student’s rights and privileges to attend school, including extracurricular activities. An expulsion is for an indefinite time, unless otherwise specified by the school board or state law. If a long-term suspension or expulsion is contemplated, the board of education shall conduct a hearing to determine whether to impose a long-term suspension or expulsion. The student and parent/guardian shall be notified of the allegation; the recommended disciplinary action; the time, date and location of the hearing; and of their right to attend and participate in the hearing. The board of education or its designee shall conduct a hearing, which may be recorded. The student shall be advised of the alleged violation and be given an explanation of the facts. The explanation may include the written or oral testimony of others. At the request of the student or the student’s parents, the board of education may meet in a closed session to “consider the dismissal, suspension, or disciplining of a student.” (MCL 15.268[b]). The student and parent/guardian may be represented at the hearing by an attorney or other adult. Written or oral evidence may be presented at the hearing on behalf of the student. After the hearing, the board of education or its designee shall issue a decision, including a determination of disciplinary action. A student aggrieved by the decision of the board of education may, within five (5) days of receipt of the decision, petition the board of education for the opportunity to request review or reconsideration by the board or its designee. The petition shall be in writing and contain the reasons that the board or its designee’s decision should be reviewed or reconsidered.
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Individualized Education Plan
An IEP is a written plan written by the student's teacher, the parent, school administrators, related services personnel, and students (when appropriate) and other persons involved in the student's education that describes the student's level of functioning, learning styles, and the special education services and goals necessary to address specific academic, social, emotional, physical and management needs. Each public school child who receives special education and related services must have an Individualized Education Program (IEP). Each IEP must be designed for one student and must be a truly individualized document. The IEP creates an opportunity for parents, teachers, school administrators, related services personnel, and students (when appropriate) to work together to improve educational results for children with disabilities.
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Child Abuse and Neglect
All children in Michigan have the right to live in a nonabusive, nonneglectful environment. If a child is in danger of physical injury or is living in a seriously damaging home environment, the Michigan Department of Human Services has the responsibility to investigate and if necessary start a court case to protect the child. Usually within 24 hours of reported child abuse or neglect, the Department of Human Services begins an investigation. If abused or neglected is found, D.H.S. may file a petition with the Family Court. The objective of this type of case is to protect the child, it is not to punish the parents. A child abuse or neglect petition may result in the removal of the child from the home of the parents or legal guardians. The parents or legal guardian may be required to participate in remedial programs to correct the situation so the child can be returned by the Court to a safe, stable and nurturing home. Sometimes, the Court must terminate the rights of the parents or legal guardian if that is the only way to keep a child safe. In these cases, the child is place for adoption.
Doctors, nurses, social workers, teachers and law enforcement personnel are required by law to report all suspected child abuse and neglect cases. These individuals must submit a report to the Department of Human Services.
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