Child Custody: No Small Matter
In recent years an increasing percentage of my caseload involves family law, and more specifically divorce and child custody. The other day when I informed a client that I engage in the practice of family law she remarked “You mean divorce? Family law sounds a bit too positive to describe that”. Regardless of whether the term is an accurate descriptor of the practice surrounding divorce and its aftermath, it appropriately serves to remind us that a significant portion of this country’s legal resources are devoted to resolving family disputes including divorce, child custody, parenting time, alimony, support and the like. In fact most of Michigan’s circuit courts have designated an entire branch of the tribunal as the family division.
Without a doubt the most important and most difficult aspect of family law is child custody. Once based on antiquated principles which included that a man had a legal right to the services of his children, and that the mother was presumed to be the superior parent to a child of tender years, the law of child custody has evolved to be based solely on the determination of what is in the best interest of the child. The twelve “best interest factors” are now encompassed in a statute known as the Child Custody Act (MCL 722.23). The Act is based on the premise that a child has an inherent right to a close relationship with both parents.
Sometimes I am asked by a potential client if I do “custody battles”. Having faced this inquiry numerous times I still bristle at the question.
I often tell potential clients yes, I do custody battles. But I try to instill in them through an understanding of Michigan’s Child Custody factors that the battle is not so much father against mother as it is a battle the child faces. And I will not represent anyone who does not grasp the concept that a child custody “battle” can be a very destructive thing. When a custody dispute arises a child is inevitably faced with confusion over who is right and who is wrong; Mom or Dad? Divided loyalties. Economic uncertainty. Fear of losing friendships and family relationships. Fear of changing schools. The job of a good lawyer is to guide the client through the custody process with the idea that it is indeed a battle, but most importantly one that nobody will win. It is a battle that should be fought by both parents on behalf of the child against those forces that in virtually every case result in irreparable loss to the child. So if you find yourself contemplating a custody battle, keep in mind that your primary objective as a loving parent must be not to “win the battle”, but to minimize the losses your children will suffer. While the process is never an easy one, if this objective is kept in mind parents are much more able to resolve a custody determination out of court, which is to everyone’s benefit.
