Key points
- Michigan custody decisions turn on 12 best-interest factors; none names drunk driving, but moral fitness, mental and physical health, and "any other factor" the court finds relevant can bring an OWI into the case.[1]
- A child has a right to parenting time unless clear and convincing evidence shows it would endanger the child's physical, mental or emotional health.[2]
- Parenting-time orders can include reasonable conditions, such as who transports the child or supervision by a third person or agency.[3]
- Changing an existing order requires proper cause or a change of circumstances, and changing an established custodial environment requires clear and convincing evidence that it is in the child's best interest.[4]
- Driving drunk with a passenger under 16 is a separate crime, and with one prior within 7 years it is a felony.[5][6]
An OWI does not decide a Michigan custody case by itself, but a court can consider it. Custody turns on the 12 "best interests of the child" factors in MCL 722.23, and an OWI can come in under factors such as moral fitness, mental and physical health, or "any other factor considered by the court to be relevant".[1] A child has a right to parenting time unless clear and convincing evidence shows it would endanger the child, and a parenting-time order can carry reasonable conditions such as supervision.[2][3]
This page explains where an OWI fits in the Child Custody Act. It does not predict outcomes: how much weight a drunk-driving case gets depends on the facts and on the judge. For general custody procedure, the sister guide's pages on custody and parenting time cover the same statutes from a different angle.
The best-interest factors
In a custody dispute between parents, the best interests of the child control.[7] Michigan defines "best interests of the child" as the sum total of 12 factors the court must consider, evaluate and determine.[1] None of them names drunk driving.[1] The factors through which an OWI most directly can be raised are:
- (f) The moral fitness of the parties involved.[1]
- (g) The mental and physical health of the parties involved.[1]
- (l) Any other factor considered by the court to be relevant to a particular child custody dispute.[1]
The list also includes domestic violence as factor (k), a separate factor from those above.[1] The statute directs the court to consider, evaluate and determine each factor; it does not set a rule that an OWI counts for or against a parent by a fixed amount.[1]
A common misunderstanding is that an OWI conviction "automatically" costs custody. The Child Custody Act contains no such rule. Equally, it is wrong to say an OWI "doesn't matter": the court may consider it under the factors above.[1]
Parenting time: the endangerment standard
Under MCL 722.27a(3), a child has a right to parenting time with a parent unless it is shown on the record, by clear and convincing evidence, that parenting time would endanger the child's physical, mental or emotional health.[2]
When deciding the frequency, duration and type of parenting time, the court may consider factors including:[8]
- Any special circumstances or needs of the child.[8]
- The reasonable likelihood of abuse or neglect of the child during parenting time.[2][8]
- Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.[8]
- Any other relevant factors.[8]
Conditions a parenting-time order can include
A parenting-time order may contain reasonable terms and conditions that help parenting time happen in an orderly way.[3] The statute's examples include:[3]
- Dividing the responsibility to transport the child.[3]
- Requiring that parenting time take place in the presence of a third person or agency (supervised parenting time).[3]
- Restrictions on third persons being present during parenting time.[3]
- "Any other reasonable condition determined to be appropriate in the particular case."[3]
Transportation conditions can matter after an OWI, because a parent's license may be suspended or restricted; see what an OWI does to your driver's license. Alcohol-specific terms are not named in the statute's list of examples, which ends with "any other reasonable condition determined to be appropriate in the particular case".[3]
Changing an existing custody or parenting-time order
A court may modify custody orders for proper cause shown or because of a change of circumstances.[4] It may not change a child's established custodial environment unless clear and convincing evidence shows the change is in the child's best interest.[4] A custodial environment is established if, over an appreciable time, the child naturally looks to the custodian for guidance, discipline, the necessities of life and parental comfort.[4]
So an OWI that happens after a custody order does not by itself change the order; any change goes through these statutory thresholds. What counts as proper cause or a change of circumstances in a particular case is not spelled out in the statute, and practice varies by court.
When children were in the car
Driving while intoxicated or impaired with a passenger under 16 is its own offense under MCL 257.625(7).[5] For a first offense it is a misdemeanor with a mandatory $200 to $1,000 fine plus up to 1 year in jail or 30 to 90 days of community service.[5] It becomes a felony with a single prior conviction within 7 years, or after 2 or more priors at any time.[6] See OWI with a child in the vehicle for the full rules.
How the criminal case and the custody case interact
The OWI case and the custody case are separate proceedings in different courts with different standards. Parts of a criminal case can also bear on parenting, and this guide covers them on their own pages: alcohol monitoring, probation conditions and sobriety court.
If you are the other parent and worried about safety
A parent who is concerned about a co-parent's drinking and driving has a few practical steps available, none of which depend on the outcome of the criminal case:
- Write down specific incidents: the date, the time, what you saw, and who else was there. Specific, dated notes are easier for a lawyer or court to use than general worries.
- Keep copies of texts or messages that arrange exchanges, so transport problems are documented.
- Ask a family-law lawyer whether to request specific conditions, such as a change in who drives the children, in your existing case.
- In an emergency, such as a parent about to drive away impaired with a child, call 911.
Crash victims and their families have separate rights in the criminal case; see rights of people injured by impaired drivers.
Practical points for parents
- Tell your family-law lawyer about the OWI case, and tell your criminal-defense lawyer about the custody case; each needs to know what is said in the other.
- Keep records of treatment, counseling and any testing you complete. The getting help page lists free referral lines.
- Plan safe transportation for exchanges if your license is suspended or restricted.
- Family members helping a parent through an arrest may find when a family member is arrested for OWI useful, and parents of teen drivers can read the guide for parents.
Common questions
Will an OWI make me lose custody of my children in Michigan?
The statutes do not say so, and no rule makes an OWI decide custody by itself. The court weighs 12 best-interest factors, and an OWI can be considered under factors such as moral fitness, mental and physical health, or any other factor the court finds relevant.[1] How much weight it gets depends on the facts of the case and the judge.
Can my ex use my drunk-driving arrest in our custody case?
A party can raise it, and the court decides what is relevant. Factor (l) of the best-interest list lets the court consider any other factor it finds relevant to the particular dispute.[1] If the request is to change an existing order, the party asking must first show proper cause or a change of circumstances.[4]
Can a judge order supervised parenting time after an OWI?
A parenting-time order may require that parenting time occur in the presence of a third person or agency, and may include any other reasonable condition the court finds appropriate.[3] Separately, the statute gives a child a right to parenting time unless it is shown by clear and convincing evidence that parenting time would endanger the child's physical, mental or emotional health.[2]
What if my children were in the car when I was arrested?
That is a separate criminal offense. Driving while intoxicated or impaired with a passenger under 16 is, for a first offense, a misdemeanor with a mandatory $200 to $1,000 fine plus up to 1 year in jail or 30 to 90 days of community service.[5] With one prior within 7 years it is a felony.[6] See the child endangerment page for details.
Can a parenting-time order include a no-drinking rule?
The parenting-time statute does not list alcohol conditions by name. It lists examples, such as transport arrangements and supervision, and then allows "any other reasonable condition determined to be appropriate in the particular case".[3] Whether a specific condition is ordered is up to the court.
Sources
- MCL 722.23(f), (g), (k), (l) — Michigan Legislature
- MCL 722.27a(3), (7)(c) — Michigan Legislature
- MCL 722.27a(9)(a), (c), (f), (i) — Michigan Legislature
- MCL 722.27(1)(c) — Michigan Legislature
- MCL 257.625(7)(a)(i) — Michigan Legislature
- MCL 257.625(7)(a)(ii) — Michigan Legislature
- MCL 722.25(1) — Michigan Legislature
- MCL 722.27a(7)(a), (c), (f), (i) — Michigan Legislature
This page is general legal information about Michigan law, published by the office of Attorney Shawn Haff. It is not legal advice and reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts — check the sources linked above and talk to a licensed Michigan attorney about your situation. In an emergency, call 911. For confidential help with alcohol or drug use, the SAMHSA National Helpline is 1-800-662-4357.