Legal System
Divorce, Custody and Parenting Time
Divorce
Divorce is something you may choose or be faced with. Here is some information to help you see how it works.
Michigan allows no-fault divorce [MALA 552.5, MSA 25.86]. This means you must show that your marriage "has broken down." You may have to give the court your basic reason for the divorce, but you don't have to prove adultery or cruelty.
With no-fault divorce, one spouse can get a divorce even if the other spouse doesn't want one. And you don't have to be living apart to file.
To get a divorce in Michigan, you must live in the state for six months before filing and in the county in which you are filing for ten days before filing.
Separate maintenance [MCLA 552.7, MSA 25.87] is available in Michigan and is only granted if both spouses consent to it. It means that you and your spouse can live apart without the responsibilities or liabilities of a marriage. It can also provide for spousal support. With separate maintenance your legal status is not very clear and many attorneys advise against it.
It is helpful to have an attorney to file for divorce, preferably one who is knowledgeable about domestic violence. You may be eligible for legal assistance at Legal Aid of Western Michigan if you meet their income guidelines, and meet certain other criteria. The Grand Rapids Bar Lawyer Referral Service can also help you find a lawyer, but does not specify whether the attorney is familiar with domestic violence laws.
Divorce kits or "do it yourself" divorces may be an option but should usually be used only if both spouses agree about property issues, where there is no danger, and there are no custody issues. Forms and assistance are available at the Legal Assistance Center in the Kent County Courthouse.
In the past, in all divorce actions, the spouse who files first is the plaintiff and the other spouse is the defendant, but under Kent County's new Cooperative Parenting Pilot Project, in divorces involving minor children, "plaintiff" and "defendant" have been replaced with "mother" and "father." If you file first, your attorney files a complaint for divorce in Circuit Court. Many women seek shelter at the time their abusive spouse is served papers that tell him a divorce complaint has been filed. This can be a very dangerous time and it is a good idea to consider.
Along with the complaint, temporary orders are usually requested which ask the court to decide about use of the marital home, custody and parenting time, spousal support and civil restraining orders or personal protection orders that will be in effect until the divorce is final.
If there are no minor children, a divorce can become final after sixty days. If there are minor children, it takes at least six months to be final. Delays often happen if your spouse contests the divorce or if there are disagreements about custody and/or property settlements.
Custody and Parenting Time
(Before recent changes in the law, parenting time was known as "visitation")
If you are married and there are no custody orders, both parents have equal rights to the children.
In divorce actions, when there are children under the age of 18, the Friend of the Court is notified. You will receive a packet from the Friend of the Court that tells you of two meetings you must attend: an orientation meeting and a parent awareness meeting. You will also be informed of a conciliation meeting. This is a joint meeting that results in a recommendation by the Friend of the Court to the judge about temporary custody and parenting time arrangements. These temporary arrangements will be in place until the divorce is final. The recommendation can be appealed in court. (If the judge issues temporary orders at a court hearing there is no conciliation meeting.)
If domestic violence is involved and it is unsafe for you and your spouse to meet together, be sure to let the Friend of the Court know so they can use safety precautions. Waiver of Conciliation must be filed with the Friend of the Court. If you have an attorney, he or she can handle this. When conciliation is waived, temporary custody and parenting time arrangements are worked out by the partners and the attorneys or brought before the judge.
After temporary custody and parenting time is ordered and is in place, permanent custody and parenting time must be decided upon before the divorce is final. Decisions made about permanent custody and parenting time will be put in place after the divorce is final. Either attorney can ask the judge to order a Friend of the Court custody or parenting time investigation and/or evaluation. Either party can also ask for a neutral, non binding Friend of the Court mediation for any problems with custody or parenting time.
For unmarried mothers, the mother has custody until there is a court order or written agreement between the parents. However, the police usually will not assist you in returning your child from the father until the judge enters a custody order. You can file a custody action with an attorney or by yourself, but it is complicated. If your child is living with you, contact the Office of Child Support to ask the prosecutor's office to file a paternity action or a support action that gives you sole custody and provides for child support. If the name of the child's father is not on the birth certificate or acknowledgment of paternity, the mother automatically has permanent custody and the father has no legal rights to the child.
Custody and parenting time orders may be for joint custody or sole custody. They may include orders for physical custody (where the child lives most of the time) and legal custody (the right to participate in important decisions in the child's life, such as school choices and medical decisions). Orders may be for reasonable parenting time (any arrangement agreed upon by the parents) or specific parenting time (usually every other weekend and an evening during the week). Many women in domestic violence situations find that specific parenting time is safer, since court papers state the specific times the assailant may be in contact with the former victim. The court can also order restricted or supervised parenting time if you can show that you are in danger or the children are at risk for abuse, neglect or parental kidnapping. Police reports, hospital records, and testimony of witnesses are types of evidence the court may consider.
The Circuit Court and the Friend of the Court can make referrals for professional supervised parenting time and safe exchanges of children that will allow both parties to avoid contact with one another. This service can be provided on a sliding fee or no cost basis to participants, depending on the individual situation (See Community Resources links, YWCA Save Connections Program).
The Friend of the Court is required to enforce parenting time that is ordered by the court. Every case is different. Contact your assigned caseworker for specific information on your case. If the court order needs to be changed, you can petition yourself or hire an attorney. The Friend of the Court has do-it-yourself forms to ask for changes in custody, parenting time, and support. You need to pick them up at the Friend of the Court office or at the Legal Assistance Center. There is a $20 motion fee, as well as other domestic relations fees that you will be required to pay unless you ask to have the fee waived (and that request is granted by the court). The Friend of the Court will usually investigate and suggest an arrangement, based upon their opinion, for the best interests of the children. Either parent can then request a court hearing if they wish to object.
