In this article, I will examine the best interests of the child factor (b) in Michigan. This is the second article in the series. Before the reader learns about 722.23(b), it is important to understand how family law courts use and apply the best interests of the child factors. I covered how the courts use the best interests of the child factors in a custody determination in the first installment of this series.
The text of 722.23(b)
Michigan’s best interests of the child statute, MCL 722.23(b), states: As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court: . . . (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.
This factor measures three important parental traits. 1) A parent’s capacity to guide and encourage the child’s education. 2) A parent’s capacity to guide and encourage the child’s religion. 3) A parent’s capacity and disposition to provide life guidance to the child. Another way to think about this factor is the measure the parent’s willingness and ability to provide guidance.
Questions to ask related to factor (b), MCL 722.23(b)
How does the parent show affection for the child? How does the parent demonstrate love for the child? Which parent does the child approach for sympathy or to discuss problems? Which parent does the child approach with a victory or achievement? Which parent is the disciplinarian? Is a parent’s discipline effective? Which parent gets the child up and ready for school? Which parent encourages and facilitates extracurricular activities for the child? Which parent takes an active role in the child’s education. Which parent helps the child with homework? Does the family practice a religion? If yes, which parent is willing to continue the child’s religious development?
Fact patterns where child factor (b) becomes really important.
A parent with a substance abuse problem is fair game under this factor. Think about it, if the person is intoxicated often, how much guidance can they provide for the child? Can a parent really help with homework if they are loaded? The parent’s capacity to provide basic guidance is diminished, and worth arguing in court.
Another important fact pattern related to factor (b) is the weak disciplinarian parent. What you are looking for is the parent that has weak or ineffective discipline techniques resulting in the child “running wild” or missing school. One of the hardest parts of parenting is being firm with your child. When a parent lacks the capacity to discipline, or their discipline is ineffective, the court will view this parent as a person that lacks the capacity or willingness to provide the child guidance. The facts to look for under this situation are the child stays up too late and can’t make it to school on time. Similarly, the child’s schoolwork drops when attending under the custody of this parent. And finally, the child is out at night getting into all sorts of legal trouble.
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