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"The Best Interests of the Child"
by: Jonathan Warshay

The "best interests of the child" is a phrase often used by courts when deciding matters concerning children. What does it really mean? In Michigan, it is defined by statute (MCL 722.23) as:

(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.

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.

(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.

When there is a dispute concerning the child, the court must use these factors to decide the outcome. The factors are often used to determine custody, but they are important in other disputes, such as changes in parenting time, which school a child attends, religious upbringing, and similar matters.

The court may weigh the factors differently, so a parent could be favored by more factors but the court considers them to be less important, and rule in favor of the other parent. For example, suppose the parent with primary custody asks the court's permission to move a great distance away, and the court feels that the move would be very harmful to the child's relationship with the other parent. In that case, the court could decide that this factor is more important than all of the others and deny the request to move.

When there is a dispute before the court, one should try to determine which factors are the most important and be sure to address them in arguments before the court. The other factors should also be considered to avoid any surprises. In preparing for a dispute and evaluating the factors, a party may come to the conclusion that the other side is favored by the factors. In such a case, it may be better to try to settle the matter to produce the best outcome rather than risk an adverse decision by the court. If you are represented by an attorney, provide him/her with as much information as possible to assist with your representation. (If you omit telling your attorney something important, your case will suffer.)

Jonathan Warshay is a former Friend of the Court Staff Attorney now in private practice.




 



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