Michigan Custody and Parenting Time During COVID-19

On March 23, 2020, in response to the COVID-19 outbreak, Michigan Governor Whitmer issued Executive Order 2020-21 which was a “Stay Home-Stay Safe” order requiring Michigan residents to shelter in place and restrict travel.  The Order was scheduled to expire on April 12, 2020, however, the Order may be extended and Governor Whitmer indicated on April 6, 2020 that an announcement may be coming shortly.

Many parents have had questions about how this Order affects custody and parenting time.  First and foremost, if you have specific questions, you should seek the advice of an attorney.  However, there are some resources providing general guidance and clarification for handling custody and parenting time issues during this “Stay Home-Stay Safe” order.

First and foremost, Executive Order 2020-21 allows for the transportation of children between homes pursuant to a parenting time agreement.  This is stated in section (7)(b)(4).  Even though we are required to shelter in place, parents can drive children to and from homes pursuant to their custody and parenting time agreements or court orders.  The “Stay Home-Stay Safe” order itself is not grounds for refusing to comply with a custody/parenting time order or agreement.

The Michigan Supreme Court provided some guidance on March 16^th prior to the “Stay Home-Stay Safe” order.  That guidance, found here, encouraged parents to work together to keep things as normal as possible for their children.  To the extent that parents can’t agree otherwise, the written agreement or order still applies and should be followed.

 On April 2, 2020, the Michigan State Court Administrative Office published FAQs about Custody and Parenting Time During the COVID-19 Outbreak.  The most frequently asked questions about custody and parenting time are addressed, along with a helpful list of resources and information.

What happens if parents don’t agree, or a parent is violating the custody/parenting time court order or agreement?  With the “Stay Home – Stay Safe” order in place, most courts are closed or are only handling emergency issues.  It is crucial to check the website of the courthouse for updates and information, and/or speak to an attorney for guidance. For example, Washtenaw County Judges are hearing some emergency issues via video conferencing with ZOOM.  The procedures for the Court are detailed on their website here.  However, as the situation is frequently changing, check back often for updates.

I can help you with your family law needs. I am working remotely during this time of shut-down, and can be reached by email at walton@psedlaw.com, or by phone at 734-328-2858.

In Custody Hearings, the Judge Cannot Just Rely on Friend of the Court’s Recommendation

In Michigan, if a parent has proven to the court that there has been a change in circumstance or proper cause to consider a change in custody, the court will generally ask Friend of the Court to make a custody recommendation. Friend of the Court will investigate and make a recommendation to the Court after a full analysis of the best interests of the child by weighing the following factors:

(1) The love, affection &other emotional ties existing between the parties involved & the child.
(2) The capacity & disposition of the parties involved to give the child love, affection &guidance and to continue the education & raising of the child in his or her religion or creed, if any.
(3) The capacity & 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.
(4) The length of time the child has lived in a stable, satisfactory environment &the desirability of maintaining continuity.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of the parties involved.
(7) The mental & physical health of the parties involved.
(8) The home, school & community record of the child.
(9) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(10) The willingness & ability of each of the parties to facilitate & encourage a close & continuing parent-child relationship between the child & the other parent or the child and the parents.
(11) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(12) Any other factor considered by the court to be relevant to a particular child custody dispute.

After analysis of these factors, the Friend of the Court will then issue a written report and recommendation that is submitted to the parents and to the Judge. The Judge will review and consider the recommendation.

However, the Judge cannot just adopt the recommendation without hearing testimony and considering evidence. This requirement was reiterated in the case of Deling v Lam, unpublished case per curiam of the Michigan Court of Appeals, issued October 7, 2010 (Docket No. 295272). In that case, the trial judge merely adopted the Friend of the Court recommendation, which radically changed the physical custody arrangement from joint physical custody to giving the father sole physical custody. The trial judge did not hear testimony or consider evidence—the judge just adopted the recommendation. The mother appealed, and the Court of Appeals reversed the trial court’s decision, stating that the trial judge improperly delegated its authority by failing to independently evaluate each of the best interest factors. The Court of Appeals reversed the trial court's decision and sent the case back to the trial court for a new custody hearing.

In issues of custody and parenting time, it is extremely important to understand not only what your rights are as a parent, but also to fully understand every step in the process.
If you are interested in learning more about child support, divorce or family law, please call Wendy Alton at 734-665-4441 or email her at walton@psedlaw.com. More information about her firm, Pear Sperling Eggan & Daniels, P.C., can be found here: www.psedlaw.com.