In an uncontested divorce, the spouses agree on all major issues that must be decided, including child custody and parenting time. In reaching an agreement, it’s important for the parents to understand and abide by the principles of Michigan law that apply to child custody matters. Getting guidance from an experienced family law attorney is the best approach to ensure that the agreement conforms to state law requirements and receives approval of the court.
The Michigan Child Custody Act of 1970, MCL 722.25, establishes that standard applied in custody matters is the “best interests of the child.” The same standard applies to decisions relating to parenting time (which is also sometimes referred to as visitation). As such, the best interests of the child are the overriding consideration in an agreement between spouses as part of an uncontested divorce. The court applies this standard in reviewing the executed agreement between the parties.
In MCL 722.23, the Act lists a dozen factors that guide the determination of what is in the best interests of the child:
(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. A court 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.
(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.
In reviewing the settlement agreement in an uncontested divorce, the judge may ask questions relating to any or all these factors to ensure that the agreement terms for custody and parenting time are in the best interests of the child.
In negotiating matters of child custody and parenting time in an uncontested divorce, two types of custody are addressed:
Legal custody describes the right to make decisions about a child’s life, such as education, medical care, and other important matters. Parents may agree to joint legal custody, in which both parents share the responsibility for making decisions, or sole legal custody, in which one parent has authority to make decisions without an obligation to seek input from the other parent.
Physical custody refers to the location(s) where the child lives. Joint physical custody describes the situation in which the child spends substantial time with both parents. Sole physical custody means the child lives primarily with one parent, with the other parent having parenting time.
The agreement between the spouses must address parenting time issues, such as visitation time, overnight stays, holidays, and vacations. In negotiating parenting time, the Michigan Parenting Time Guidelines provide insight and guidance for making decisions as part of the overall agreement. Parents should keep in mind that the best interests of the child should guide all decisions on parenting time issues.
The settlement agreement between the spouses in an uncontested divorce must include provisions addressing custody and parenting time when a marriage includes children. The negotiated terms in the agreement must comply with the legal standards outlined above. That is one of the primary reasons that the parties should have experienced legal representation, even if a divorce is uncontested.
If the spouses cannot agree on custody and visitation terms, they can still avoid a contested divorce by resolving differences through 1) direct negotiation between the spouses or their lawyers, 2) mediation, or 3) a collaborative process. Guidance from experienced legal counsel is indispensable in resolving differences in an uncontested divorce and in navigating the uncontested divorce process.
If the spouses do not reach an agreement on custody and parenting time, the proceeding becomes a contested divorce. The matter then goes through the litigation process, potentially including a trial, with the judge determining the outcome on custody and parenting time and any other unresolved issues.
Based in Howell, Michigan, family law attorney Henry Bergmans advises clients in Livingston, Genesee, Ingham, and Washtenaw Counties and the surrounding areas. Please reach out to learn more about the legal services at Bergmans Law by calling 810-360-0090 or using the online form.
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