Ask A Divorce Lawyer: Does not having the title of joint physical custody give my ex an advantage?


My ex wife was recently awarded full physical custody and we both have joint legal custody. We attempted to go to trial to obtain joint physical custody but we were then able to negotiate a 50%, or 182.5 nights per year, equal split of parenting time. My lawyer advised that the agreement of 50% now meant that the “full physical custody” was just a bumper sticker title because we were able to obtain 50% instead of the original 60/40 that was proposed.

Should I be worried or concerned that I did not push harder for the “title” of joint physical custody given the fact that this is what we were basically awarded? What advantage might my ex now have on me by keeping the full physical custody?



In some states, each parent’s title affects his or her rights to support, modifications and other relief and the burdens he or she can anticipate in subsequent court proceedings (e.g., a joint custodian need only show a “preponderance of the evidence” to modify custody) – but not in Michigan. In Michigan, the dispositive fact is how much time the court awarded each of you with your children, not the label the court attached to you.
For example, the Child Custody Act and its case law require the Family Court to presume it is in the best interests of a child to have a strong relationship with both parents. For physical custody orders and modifications, whether an established custodial environment exits is a preliminary factual question. The trier must make clear findings on this issue before deciding custody. See, e.g., MCL 722.27; Underwood v Underwood, 163 Mich App 383; 414 NW2d 171 (1987). An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. If it exists, the other party must persuade by clear and convincing evidence that changing it is in the child’s best interests; otherwise, the preponderance of evidence burden applies. Notice what does not appear in this definition: the label the court attaches to physical custody rights.  
Keep in mind that, while I am a Michigan attorney, I cannot give you advice and a thorough case assessment without having an opportunity to review your file and analyze all of the facts. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney immediately for additional information or legal representation.




Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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