What gets decided during a custody hearing

What Gets Decided in My Custody Case?


Your custody case will address the issues of custody (who the child lives with and who makes decisions for the child), parenting time, and child support.


Legal Custody and Physical Custody


There are two types of custody, legal and physical.


Legal custody


Legal custody means having the right to make important decisions about your children, such as where they go to school, what religion they are (if any), and major medical decisions.


Physical custody


Physical custody refers to the children’s living arrangements.

Custody can be “sole” or “joint.” Sole custody means only one parent has custody. Joint custody means the parents share custody. If parents share legal custody, they must make important decisions about their children together. If parents share physical custody, the children live with each parent some of the time.


Parenting Time


Once physical custody is determined—joint or sole—parenting time must be established. Parenting time is the term used in Michigan for the time a child spends with each parent when parents do not live in the same home. When one party is awarded sole physical custody, typically that parent has a substantial amount of parenting time or time with the child, and the other parent has less. When parties have joint physical custody, although that doesn’t have to mean equal parenting time, it is often equal or close to equal.



Parenting time can be granted for specific dates and times, or it can be “reasonable parenting time.” With reasonable parenting time, parents work out parenting time as they go, without a specific schedule. With reasonable parenting time, if there is a disagreement, you will need to file a motion for the judge to resolve the conflict.


If you have specific parenting time, that means there is a specific schedule. If you are comfortable talking with your child’s other parent, you may be able to agree on a parenting time schedule. If you cannot agree on a schedule, you may get a court-ordered schedule instead.


How Custody and Parenting Time Decisions Are Made


In many cases, parents are able to agree on the custody and parenting time arrangements for their court order. They can reach an agreement without the court’s involvement, or with the help of the Friend of the Court. 


Each State Has Its Own Parenting Time Guideline 


Your state’s parenting time guidelines, findable by searching on Google, need to put together a parenting time schedule. The Guideline includes sample schedules you can use as a starting place to create your family’s schedule. It also has information about the developmental needs of children at different ages in connection to parenting time. The Guideline addresses specific topics such as long distance parenting time, parenting time with a parent who is in prison, and how to address domestic violence situations.


If the parents can’t agree on custody and parenting time, the judge will make decisions on these issues.

When a judge makes a custody decision, they have to consider the established custodial environment (ECE) and the best interests of the child. When they make a parenting time decision, they must consider the best interests of the child. 


Established Custodial Environment


The law says generally that custody arrangements for children should remain stable. Because of that, the judge will always ask whether the child has an established custodial environment (ECE) with one or both parents. If so, it will take more evidence for a judge to change the current arrangement.


When deciding if there is an ECE, the judge looks at what the child’s life is like. For example, does the child look to one (or both) of the parents for love and affection, food, housing, and other needs? Is the child old enough to have been in the current arrangement for a significant amount of time?


If the judge decides there is an ECE, then the party who wants to change the ECE must show by clear and convincing evidence that the change is in the best interests of the child. 


If the judge decides there is no ECE, then the winning party will be the one who shows by a preponderance of evidence that the proposed custodial arrangement (the type of custody that party wants) would be in the best interests of the child.


The Best Interest Factors


If the parents do not agree on custody and parenting time, the judge will decide these issues based on the best interests of the child. This legal test requires the judge to consider the following factors:

  1. The love, affection, and other emotional ties existing between the parties involved and the child;
  2. 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;
  3. The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized 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, and 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 and physical health of the parties involved;
  8. The home, school, and community record of the child;
  9. The reasonable preference of the child, if the judge considers the child to be old enough to express a preference;
  10. 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. A judge may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent;
  11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child;
  12. Any other factor considered by the judge to be relevant to a particular child custody dispute.


At the hearing on custody and parenting time, each parent will have the opportunity to present evidence related to the best interest factors above. 


When the judge considers the best interests of the child, the law does not require them to give each factor equal weight. The judge decides how much weight to give each factor. 


Other Parenting Time Considerations


In general, children have the right to be close to both parents. They have the right to parenting time unless the judge finds there is clear and convincing evidence that it would be a danger to the child’s physical, mental, or emotional health. 


If the judge determines that a parent is dangerous to the child, they may order supervised parenting time or no parenting time at all. For example, this can happen if a parent is likely to:

  • Physically or sexually abuse the child
  • Fail to take care of the child and meet the child’s needs
  • Put the child at risk through alcohol or drug abuse
  • Put the child at risk of harm in some other way


How much and what type of parenting time each party gets will be up to the judge if the parties do not agree. Like custody decisions, judges make parenting time decisions by considering the best interests of the child factors listed above.


The judge can also use the parenting time factors below to decide how often each parent has parenting time, how long visits are, and whether parenting time should be supervised:

  1. Any special needs of the child;
  2. Whether the child is nursing;
  3. Whether abuse or neglect of a child during parenting time is likely;
  4. Whether abuse of a parent during parenting time is likely;
  5. The inconvenience and impact on the child of traveling for parenting time;
  6. Whether a parent is reasonably likely to exercise parenting time;
  7. Whether a parent has frequently failed to exercise reasonable parenting time;
  8. The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent;
  9. Any other relevant factors.



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