Michigan Best Interests of the Child Factors Explained Series Episode 722.23(a)
In this article, I will provide some basic education for the best interests of the child factor (a) or MCL 722.23(a). During a contested child custody hearing, the judge must review each of the 12 factors found in the best interest of the child factors statute. A parent seeking a divorce or a parent seeking a change of custody will benefit from understanding how the courts, the Friend of the Court(FOC), and family law lawyers evaluate and interpret factor 722.23(a). Every co-parent should maintain a family law notebook, this simple organizing device will both uncover and preserve evidence to be used in court.
The rules for the child custody court game
If I were to try to play cricket, I am sure I would be horrible at it because I don’t know the rules of the game. The same idea holds true for parents entering a child custody court determination. The judge will have to pick one parent for primary custody. The judge looks at a child custody determination and focuses on what would work best for the child, hence “The Best Interests of the Child Factors Defined.” The judge will compare each parent under each factor, (a) through (l), and pick which parent is better under each factor.
The text of factor 722.23(a)
“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: (a) The love affection and other emotional ties existing between the parties involved and the child. ” MCL 722.23(a)
This factor doesn’t measure which parent loves the child the most. Rather, this factor measures which parent has the stronger bond with the child. The truth is this: showing up in court is good evidence that a parent loves their child. Family court judges also handle abuse and neglect cases, they know the real parents that do not love their children. However, when parents can’t come to an agreement, the judge must decide.
Questions to flush out the winner for MCL 722.23(a)
Which parent does the child seek for advice with a problem? Which parent does the child share their academic or extracurricular accomplishments? Which parent does the child seek out when they are ill? Is it clear which parent has the stronger parent-child bond? Who disciplines the child? Has one parent traditionally taken care of the day-to-day needs of the child? Does the child love and respect one parent more than the other?
The evidence that would be needed under this factor is witness testimony, photographs, and other tangible evidence. Some of my favorite pieces of evidence for the younger children are the seemingly endless mothers/fathers day craft gifts. Similarly, the parent with loads of fun activity photographs with the child has plenty of evidence of parent and child bonding. Although the child may not like it, appropriate discipline is a hallmark of every concerned and loving parent. Any evidence of a parent going to extraordinary lengths to make the child happy is good evidence.
The sign that a parent’s love for their child isn’t as strong as it should be.
The following negative evidence is more prevalent after the divorce, during a change of child custody motion. A change of child custody motion is filed when one parent desires more time with the child, at the expense of the other parent. A change of child custody motion is a difficult motion, the law disfavors frequent changes in a child’s living environment.
When one parent willingly and frequently doesn’t use their parenting time with the child, then a family law court will likely find this parent doesn’t have much capacity to show love and affection for the child. There is nothing that says I don’t love you much more than not showing up for visitation. Over time, a pattern will develop where one parent always seems to find an excuse for not taking the child for parenting time pursuant to the court order. For example, when a custody order gives a parent 80 overnights per year, but the parent only exercises 40 overnights, it becomes clear that this parent either doesn’t want to spend time with the child or lacks to temperament to be a regular parent. The longer this part-time parent routine continues the harder it becomes for the child.
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