Domestic Violence and Child Custody in Michigan

Michigan does not have a statutory presumption that a parent who committed domestic violence loses custody. Domestic violence is one of twelve "best interests of the child" factors a family court judge weighs, listed as factor (k) in MCL 722.23.^[1][2]

If you or your children are in danger, the National Domestic Violence Hotline can be reached by calling 1-800-799-SAFE (7233) or by texting START to 88788; it describes its service as free, confidential and available 24/7.^[6] Local services are listed in where to get help in West Michigan.

This guide is part of a criminal-law reference library. It describes what the custody statutes and the Michigan Judicial Institute's benchbook say so that people on either side of a criminal case can see how the two courts connect. Custody is decided in the family division of circuit court, under its own rules, and questions about a particular custody case belong with a family-law attorney.

How Michigan courts decide custody

When a custody dispute is between the parents, "the best interests of the child control."^[2] The Child Custody Act defines best interests as the sum total of twelve factors "to be considered, evaluated, and determined by the court."^[7]

Factor	What the court looks at
(a)	Love, affection and other emotional ties between the parties and the child[7]
(b)	Capacity and disposition to give love, affection and guidance and to continue the child's education and raising in his or her religion or creed[7]
(c)	Capacity and disposition to provide food, clothing, medical care and other material needs[7]
(d)	How long the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity[7]
(e)	The permanence, as a family unit, of the existing or proposed custodial home[7]
(f)	The moral fitness of the parties[7]
(g)	The mental and physical health of the parties[7]
(h)	The child's home, school and community record[7]
(i)	The child's reasonable preference, if the court considers the child old enough to express one[7]
(j)	Each parent's willingness and ability to encourage a close and continuing relationship between the child and the other parent[7]
(k)	Domestic violence, regardless of whether the violence was directed against or witnessed by the child[1]
(l)	Any other factor the court considers relevant to the particular dispute[7]

The statute speaks of the "sum total" of the factors, so a judge who finds that factor (k) favors one parent still has eleven other factors to evaluate.^[7]

What factor (k) covers

The factor reads: "Domestic violence, regardless of whether the violence was directed against or witnessed by the child."^[1] Two things stand out. Violence between the adults counts even if the child was never touched, and it counts even if the child did not see it.^[1] The factor was added to the statute on November 29, 1993.^[1]

The Child Custody Act does not define domestic violence. In Brown v Brown, the Court of Appeals held that the term in factor (k) includes domestic violence as defined in MCL 400.1501.^[8] In that case harsh corporal punishment that left marks and bruises qualified, and the court said abuse of a family pet can qualify "if done for the purpose of distressing or coercing a person emotionally bonded to that pet."^[8]

Is a conviction needed?

The statute's word is "violence," not "conviction."^[1] The benchbook's case examples on factor (k) turn on testimony given in the custody case itself.^[1] That cuts both ways. A parent who was never charged may still face evidence of violence in family court, and a parent who has a criminal record will have it weighed alongside everything else rather than treated as the end of the analysis.^[1][2]

A protection order is not a shortcut either. In Loutts v Loutts, a spousal-support dispute, the Court of Appeals approved the trial court's statement that the fact one spouse obtained a personal protection order (PPO) against the other did not "automatically import a finding of domestic violence."^[9]

There is no custody presumption in Michigan

It is sometimes said that Michigan presumes an abusive parent cannot have custody. That is not what the statute says. Neither MCL 722.23 nor MCL 722.25 contains a presumption against awarding custody to a parent who committed domestic violence.^[2]

The source of the confusion is the Model Code on Domestic and Family Violence, a national model that does contain rebuttable presumptions about custody. The Michigan benchbook quotes it as guidance for judges; it is not a Michigan statute.^[2] The same is true of the Model Code's rule that a new finding of domestic violence automatically counts as a change of circumstances.^[5]

The only automatic custody bars in the Act involve criminal sexual conduct. A court "shall not award custody" to a biological parent where the child was conceived through acts for which that parent was convicted of criminal sexual conduct, or was found by clear and convincing evidence to have committed nonconsensual sexual penetration, subject to exceptions in the statute.^[4] A parent convicted of criminal sexual conduct against his or her own child cannot be awarded custody of that child or a sibling without the consent of the other parent and, if old enough, the child.^[4]

Protection for a parent who acted to keep a child safe

Factor (j) rewards a parent who supports the child's relationship with the other parent. Without a limit, that factor could penalize a parent who cut off contact out of fear. The statute includes one: "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."^[3]

The parenting-time statute has a related rule. A custodial parent's temporary residence with the child in a domestic violence shelter is not to be construed as evidence of intent to retain or conceal the child from the other parent.^[10]

Moving with a child

A parent whose child's custody is governed by court order may not move the child's legal residence more than 100 miles from where it was when the case began without the other parent's consent or the court's permission.^[11] Domestic violence, "regardless of whether the violence was directed against or witnessed by the child," is one of the five factors the court considers in deciding such a request.^[11]

The statute also contains a safety valve: a parent who "needs to seek a safe location from the threat of domestic violence" may move to such a location with the child until the court makes a determination.^[11] The 100-mile rule does not apply where one parent has sole legal custody.^[11]

Changing a custody order that already exists

An existing custody order is not reopened simply because one parent asks. The moving parent first has to show "proper cause" or a "change of circumstances" before the court revisits the best-interest factors.^[5] Then a second protection applies: the court "shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child."^[5]

How a criminal case, a PPO and a custody case fit together

These proceedings run in different courts and can produce orders that seem to conflict.

• PPO versus custody order. A PPO takes precedence over any existing custody or parenting time order until the PPO expires or the court with jurisdiction over custody modifies its order to accommodate the PPO.^[12] Either party may file a motion in the custody court, and the hearing must be held within 21 days after the motion is filed.^[12]
• PPO terms about children. A PPO may prohibit removing minor children from the person who has legal custody, except as a custody or parenting time order allows.^[13] The Court of Appeals has also upheld a PPO that restricted a father's contact with his children without a best-interest analysis, because the PPO court was issuing an emergency protective order, not deciding custody.^[13]
• Criminal no-contact orders. Whether a bond condition in the criminal case affects contact with shared children depends on the wording of that order; the sources reviewed for this library set no general rule.^[13]

Each of these is covered in more depth in PPOs, children and parenting time and no-contact orders and seeing your children. Day-to-day contact, supervision and exchanges are covered in parenting time, supervision and exchanges.

Friend of the court and mediation

Many custody cases involve the friend of the court office. Each office's alternative dispute resolution plan must include "a screening process for domestic violence, the existence of a protection order between the parties, child abuse or neglect, and other safety concerns."^[14]

Mediation is also limited. A court may not submit a contested domestic relations issue to mediation when the parties are subject to a PPO or other protective order unless it first holds a hearing to decide whether mediation is appropriate, although it may order mediation without a hearing if the protected party requests it.^[15] A party may also seek to be excused from mediation on the ground of domestic abuse, unless attorneys for both parties will be present at the session.^[15] More on this is in domestic violence and divorce.

What people get wrong

• "Michigan presumes an abuser cannot get custody." There is no such statutory presumption; domestic violence is factor (k).^[2]
• "If the criminal case is dismissed, the family court cannot consider it." Factor (k) is not tied to a conviction, and the benchbook's examples turn on testimony in the custody case.^[1]
• "A PPO proves domestic violence." The Court of Appeals has approved the view that a PPO does not automatically import such a finding.^[9]
• "The violence only matters if the child saw it." The factor applies regardless of whether the violence was directed against or witnessed by the child.^[1]

Where a child was present during an incident, two further topics may apply: domestic violence in front of children and Children's Protective Services and domestic violence.