Contrary to popular belief, there is no age in Michigan when the child can unilaterally decide which parent to live with other than after age 18. The preference of the child, however, is one of the many considerations that the judge will consider when making decisions regarding child custody or parenting time.
MCL 722.23 states that the “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
- (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.
- (c) 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. 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.
- (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.
The preference of the child is a part of the total consideration the judge must give in deciding custody and parenting time issues, but it is not all-determining. In fact, the judge does not have to give equal weight to all of the best interest factors. A child’s preference will be evaluated for the weight it deserves based on the child’s age and the “reasonableness” of the choice under the circumstances.
In Bowers v Bowers, 190 Mich App 51, 55-56; 475 NW2d 394 (1991), the Michigan Court of Appeals determined that a child over six years old is presumed to have the capacity to express a preference in a custody or parenting time dispute. The interview is limited to inquiring about reasonable preference only (not a full-blown examination on the witness stand) and there is no requirement that the trial court memorialize its interview in any particular manner. Molloy v Molloy, 466 Mich 852; 643 NW2d 574 (2002), vacating in part Molloy v Molloy, 247 Mich App 348; 637 NW2d 574 (2002). Since reasonable preference is specified in statute, trial courts are required to conduct an interview of the child in all but the most extraordinary circumstances. Kubicki v Sharpe, 306 Mich App 525; 858 NW2d 57 (2014). However, in Maier v Maier, 311 Mich App 218 (2015), the Michigan Court of Appeals upheld the trial court’s refusal to interview a nine-year old child when it appeared to the judge that the child was emotionally fragile and had been coached by the parents to address preference in a particular way.
The myth that a minor can elect which parent to live with is not far-fetched when one considers some rights and responsibilities that children have before the age of 18. At age 14, a child can nominate a guardian or withhold consent to an adoption. At age 16, a child can drop out of high school, ask the court for a parental consent waiver for an abortion or even ask the court to emancipate him or her from the parents. In Michigan, a sixteen-year old can even get married with parental consent. Let’s not forget that a 17 year-old can be tried as an adult for a crime without the need of a juvenile waiver or designated proceedings. However, children under 18 cannot unilaterally pick the parent that they want to live with.
Most importantly, parents cannot forget that custody and parenting time orders are exactly that… court orders. Parents can be held in contempt of court and ultimately fined or jailed if they do not follow the court order and send the child to the judicially-ordered parenting time. A mother or father cannot withhold the child from the other parent because they “don’t want to live with you” or “don’t want to see you this weekend due to other plans”. The children do not have the option, and the parents run all the risks if they encourage, enable or condone their kids to disobey or ignore the parenting time order. Children can also be adjudicated as incorrigible or as runaways in the juvenile court for disobeying reasonable parental instructions.
In sum, custody and parenting time orders can only be changed or disregarded if the court modifies the order or the child reaches the age of majority. A parent who is complicit in permitting the child to ignore the order can be subject to civil and criminal contempt proceedings. A defiant child who does not want to see the other parent should receive a clear message from both parents that the court order will be followed and one party will not be manipulated against the other. If the parent desires a change of custody or parenting time, a motion should be filed with the court and allege the proper cause or change of circumstances. If the parent reasonably suspects imminent danger to the child if sent to the other parent, then the police or child protective services should be contacted immediately. Otherwise, there is no right for any party to unilaterally disobey the court order. An experienced family law attorney can help guide you towards making the appropriate decision in your unique circumstance.
If you have concerns regarding custody or parenting time, or a question about any other issue regarding family law, then do not hesitate to contact the skilled lawyers at Kershaw, Vititoe & Jedinak PLC.