Minor Children - Custody

I.  Principles

It is presumed that conflict and change are disruptive and harmful to children and that the court should always try to minimize the number of changes and reduce conflict whenever possible.

1. The higher the level of conflict the fewer contacts there should be between the parties.
2. The higher the level of conflict, the more expedited the case should be.
3. An imperfect decision which reduces conflict is less harmful to children than maintaining a conflicted status quo, or a "fair" result to parents which escalates conflict.
4. If a temporary order changes the status quo, procedures should be expedited.
5. Do not order "birds nest" arrangements unless agreed to by the parties.

II.  Practice

1. Ex parte orders for temporary possession of minor children:
   1. Must include affidavit stating that the order would preserve status quo. Court should check to be sure that affidavit alleges status quo.
   2. Must be presented to Friend of the Court for approval before submitting to the Court.
   3. If it later appears that order was in fact changing the status quo there should be sanctions against the party who misrepresented the facts.
2. Hearings on motions for temporary possession:
   1. Whenever possible, a pre-hearing conference should be held with the Judicial Assistant or Friend of the Court Referee. It should be at the discretion of the Judicial Assistant or Referee whether the meeting includes the parties.
   2. The case should be referred to a Friend of the Court Evaluator with the status quo maintained unless:
      1. There is a medium high or high level of conflict. In that case the children should remain in the possession of the historically more primary parent (in the marital home if that is desired by the parent and economically possible); or
      2. If the children are at risk for abuse or neglect by the historically more primary parent, then the children should be placed with the other parent. Visitation with the risky parent should be as often as possible, taking into account the safety needs of the children and the need to reduce the level of conflict. The case should be referred for the earliest possible FOC date or a psychological evaluation. (SEE IIC below.)
      3. See Benchbook on Removal of Spouse from Marital Home.
   3. If the hearing is held after the preliminary/final FOC recommendation has been made, the Court should follow the recommendation unless it appears to be off the mark or there is new material or evidence which was not available to the Friend of the Court.
3. Ordering psychological evaluation:
   1. Factors to consider:
      1. If requested by FOC.
      2. If family shows high conflict/severe dysfunction. See Mary Whiteside’s scale for conflict, below. For example, history of emotional, physical, child or substance abuse, child neglect, children showing serious acting out, and other problems.
      3. If highly problematic case which looks like it will take significant trial time.
      4. If mental health of a party is at issue.
      5. If requested by both parties.
      6. The cost and ability of each party to pay.
   2. Picking an Evaluator:
      1. By consent of attorneys and parties.
      2. Each attorney submits list of two or three, and Court picks one.
   3. De bene esse deposition should be done by the party who will call the expert if the expert is not otherwise available at trial.
4. The trial or evidentiary hearing should be scheduled after Friend of the Court Evaluation, Referee Hearing or psychological evaluation.
5. The trial court must read and may consider any FOC recommendation in reaching a decision, though the report itself is generally inadmissible as evidence unless all parties stipulate to its admission. Hoffman v Hoffman, 119 Mich App 79 (1982); McCarthy v McCarthy, 74 Mich App 105 (1977).
6. Psychological evaluation can be considered in support of the Court’s ultimate finding, but not as a substitute for these findings.
7. Truly new material or evidence can be used to rebut a FOC recommendation or psychological evaluation.
8. Best Interests of Child check list.
   

III.  Continuum of Post-Divorce Parenting Environments

Interventions

• Education, support of positive parenting
• Presumptive mediation for disputes, education, facilitated parenting meetings, psychotherapy
• Med-arb, evaluation, arbitration, group interventions, therapy, supportive legal orders and motions

Mary F. Whiteside, Ph.D. · Ann Arbor Center for the Family
2300 Washtenaw Ave. Ste.203 · Ann Arbor, MI 48104