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Common Questions about Being a Defendant in a Custody Case
Contents
These are common questions about being a defendant in a custody case.
Questions about Participating in a Custody Case as the Defendant
If you were served with a complaint for custody, this makes you the Defendant in the case. Go to the I Am a Defendant in a Custody Case toolkit to learn what you can do.
Yes. To get your court fees waived, you must file a Fee Waiver Request. This form tells the court that you can't afford to pay the fees in your case, and it asks for a waiver. You can use the Do-It-Yourself Fee Waiver tool to complete the affidavit.
Serve your child’s other parent with a copy of every paper you file in the custody case. If you are the Defendant, do this by mailing the papers by first-class mail to your child’s other parent at the address listed on the Summons. If the other parent has a lawyer, mail the papers to the lawyer instead.
Complete a Proof of Mailing form each time you mail papers, and file it with the court clerk's office in the county where your custody case is located.
You are not required to have a lawyer. You have the right to represent yourself. But representing yourself in a custody case isn’t easy.
You may be able to handle your own case if you and your child’s other parent agree on the major issues, or the other parent is absent.
If you think your child’s other parent will disagree with you about an important issue, consider hiring a lawyer to help you.
You may also need a lawyer if the issues in your case are complicated, such as if you:
- Have a child and are not sure who the biological father is
- Have been emotionally, verbally, or physically abused in your relationship
Use the Guide to Legal Help to look for a lawyer or legal services in your area.
Existing cases between you and the other parent can affect your custody case. You must list all other court cases between you and your child’s other parent in your complaint. If another case is still active, the court might not have jurisdiction in a new case.
If you have an existing family law case, you may want to talk to a lawyer. If you need a lawyer and have low income, you may qualify for free legal help. You can use the Guide to Legal Help to look for a lawyer or legal services.
Yes. The custody case should be filed in your child’s “home state.” In general, your child must have lived in Michigan with a parent for at least six months in a row right before the case was filed (or since birth) for Michigan to be his or her home state. Michigan may also be the child's home state if the child is currently in another state, but Michigan was the home state within six months before the case was filed, and a parent continues to live in Michigan.
If you’re not sure whether Michigan is the right state for your custody case, you may want to talk to a lawyer. Use the Guide to Legal Help to look for a lawyer or legal services in your area.
No, unless both parents and the minor children live on a reservation. Then, you must file your case in tribal court.
If you are a person with a disability and have to go to court, you can ask the court to provide you with an accommodation so you can fully participate in the court activity.
To make your request, use the Do-It-Yourself Request for Accommodations tool and mail or deliver the form to the court administrator in the court where the activity will take place.
You should mail or deliver your Request for Accommodations as early as possible so the court can consider it and arrange for the accommodation(s) if it grants your request. If you don’t file your request before the court activity starts, but the activity is on-going (like a hearing that lasts more than a day), file your request as soon as you can.
Examples of accommodations that may be available are:
- Interpreter for people who are deaf (such as a sign language interpreter)
- Assistive listening device
- Handicap accessibility (such as use of a service animal)
- Other accommodations depending on your need
Each court has an Americans with Disabilities Act (ADA) Coordinator. You can find your court’s ADA Coordinator using the Directories page of the Michigan Courts One Court of Justice website.
Domestic relations mediation is a process that the court can use to help resolve contested issues in a family law case. The mediator is a neutral person who helps you and the other party work out an agreement in your case. You could be referred to mediation if you agree to it or if the judge orders it. You and the other party will pay the mediator a fee.
Some cases are not appropriate for mediation. Your case might be excused from mediation for any of the following reasons:
- You or the other party have a personal protection order against the other
- Your children have been abused or neglected
- There has been domestic violence in your relationship, unless you both have attorneys at the mediation sessions
- You or the other party is unable to negotiate for themselves at the mediation, unless you both have attorneys at the mediation sessions
- There is reason to believe that the health or safety of one or both of you will be put at risk by mediation
The Friend of the Court (FOC) is part of the family division of the circuit court. The FOC helps the court in cases involving custody, parenting time, and child support. Some of the duties the FOC performs are:
- Investigating and issuing recommendations about custody, parenting time, and child support
- Helping the parties settle disputes during and after their case
- Providing enforcement services on existing custody, parenting time, and support orders
To learn more, read Friend of the Court Overview.
If a Friend of the Court (FOC) referee issues a recommendation in your case and you do not file an objection within 21 days after you are served, the recommendation can become an order. However, the judge is not bound by a FOC recommendation and can choose not to make it an order.
You may be able to opt out of FOC services in your case if both you and the other party agree to opt out.
To learn more, read Friend of the Court Overview.
Questions about How Custody and Parenting Time Are Decided
In a custody case the following may be decided:
- Who has legal custody (who gets to make major decisions in your child’s life)
- Who has physical custody (who your child lives with)
- What the parenting time arrangements will be
- Who will pay child support and how much
- Who will provide health insurance
- How uninsured medical costs and child care costs will be paid
If there has never been a custody order for the child before and the parents don't agree on custody, the court will first decide whether an established custodial environment exists with either parent and determine the proper burden of proof. The burden of proof is applied to the Child Custody Act’s “best interests of the child” factors. The judge will look at all the facts in your case to make a decision. To learn more about child custody, read the articles Custody and Parenting Time and The “Best Interests of the Child” Factors.
If you have legal custody, you have the right to make important decisions about your children. If you have physical custody, your children will live with you at least some of the time. Sole custody means that only one parent has custody. Joint custody means the parents share custody.
Both legal and physical custody can be awarded to just one parent (sole custody) or to both parents (joint custody). If you and the other parent have joint legal custody, you must cooperate and agree on major decisions that affect your kids. If you and the other parent have joint physical custody, your children will live with each of you for set periods of time.
Supervised parenting time is where children spend time with a parent, supervised by another adult. A judge may order supervised parenting time if a parent is not responsible or is a risk to the children.
The supervisor could be a grandparent, other relative, friend, or other court-appointed supervisor. If a parent is a threat or danger to the other parent but not to the children, a judge may still order supervised parenting time. Or, a judge may allow unsupervised parenting time but require that pick-up and drop-off be supervised or done by a third party.
Yes. Parents can work out their own custody and parenting time arrangements. The judge will likely approve your agreement as long as its terms are in your child’s best interests. To learn more about how judges view the best interests of children, read the article The “Best Interests of the Child” Factors.
Parenting time (visitation) may be given to a parent who doesn’t have physical custody of the child. A parenting time schedule may also be used to explain the child’s living arrangements for parents with joint physical custody.
If both parents agree on a parenting time schedule, the judge will normally approve the agreement. If the parents can’t agree, the court will award parenting time based on the “best interests of the child” factors.
In most cases it is in the best interests of a child to be close with both parents. A child also has the right to parenting time with a non-custodial parent, unless there is clear and convincing evidence that the parenting time would put the child's physical, mental, or emotional health in danger. The amount and type of parenting time must encourage a strong relationship between the child and parent.
Questions about How Child Support Is Decided
Child support is a parent’s court-ordered payment to help with the costs of raising a child. Child support can be orderd in any family court case involving minor children and their parents, such as a divorce case or a custody case. To learn more, read Child Support in a Nutshell.
You can use the MiChildSupport Calculator on the Michigan Department of Health and Human Services website to find out what the support amount might be in your case.
Every case is different. Child support includes a base support amount. It can also include money for health care and child care costs. The amount of support comes from the Michigan Child Support Formula (MCSF). The formula is based on factors such as:
- The parents’ incomes
- The number of children
- Child care costs
- Health care costs
- The number of parenting time overnights the children have with each parent
The court must follow the MCSF unless it would be unfair or inappropriate to follow it. For more information about child support, read Child Support in a Nutshell.
Imputed income is an amount of money that a judge decides a parent can earn. It is not the amount the parent actually earns.
The judge may impute income if a parent is voluntarily unemployed or takes a voluntary pay cut. The amount of child support is then based on imputed rather than actual income.
Every child support order should include an amount for ordinary medical expenses. Ordinary medical expenses are costs for things not covered by insurance. Examples of these expenses are co-pays for office visits or prescriptions. Ordinary medical expenses don’t include things like vitamins, first aid supplies, or over-the-counter medicine.
Uninsured health care expenses in a calendar year that exceed the ordinary medical amount are called additional medical expenses. The parent who receives child support must provide proof of both the ordinary and additional medical expenses to ask the other parent to pay their percentage of additional medical expenses. This percentage should be filled in on the second page of the Uniform Child Support Order.
A child support order states how additional medical expenses get paid. These are costs for some of the things not covered by insurance. They are costs that exceed the ordinary medical expenses in a calendar year.
Usually each parent is ordered to pay a percentage of the additional medical expenses. The percentages are based on income. The parent who gets paid child support must document the expenses. The other parent can then be asked to pay their share.
A Uniform Child Support Order (UCSO) is a court order that shows how much child support a parent must pay. The UCSO requires the payer to pay a monthly amount for child support. The monthly amount can include:
- Base support,
- Medical costs, and
- Child care costs
To learn more, read Child Support in a Nutshell.
Maybe. The court may order support for a child who is between 18 and 19½ if:
- The child is a full-time high school student and regularly attends school;
- The child has a reasonable expectation of graduating;
- The child lives full-time with the person getting child support, or at an institution.
The child support order must include a specific end date for support, regardless of the child’s actual graduation date.
The court may order one or both parents to provide health insurance for the child. The court will require each parent to keep the Friend of the Court informed of health care coverage that is available as a benefit of employment, or that either party buys directly from an insurer.
Child support normally stops when a child turns 18. However, a court may order support for a child who is between 18 and 19 ½ if the child:
- Attends high school full-time,
- Has a reasonable expectation of graduating, and
- Lives full-time with the parent who gets child support or at an institution
Yes. When a custodial parent lives apart from the other parent, and the custodial parent and/or the child gets public assistance, the Michigan Department of Health and Human Services (MDHHS) will probably seek a child support order. The child support you pay may go to the state instead of the other parent to help reimburse the state for the public assistance. Child support can’t be waived by the custodial parent in these cases.
It depends. If your only income is SSI, you can’t be required to pay child support. The Michigan Child Support Formula specifically says that SSI is not counted as income. Tell the judge if you get SSI. Get a statement from the Social Security Administration stating that you get SSI and bring it to court. If you were ordered to pay child support before you started getting SSI, you can file a motion to have it changed. Use the Do-It-Yourself Motion to Change or Get Child Support tool to prepare a motion.
Maybe. If you receive SSD, your dependent children may be able to get SSD dependent benefits. Consider applying for SSD dependent benefits on behalf of your children. How much your children get depends on your earnings record. The court will count your children’s SSD benefits towards payment of your child support obligation. The court may also order you to pay some additional child support. Usually, you will only be ordered to pay additional money if the dependent benefit your children get is less than the amount of child support that should be paid.
If your children start getting dependent benefits after the initial child support order is entered, you can file a motion to change child support to make sure you are being credited for the benefits.
Yes. Children have the legal right to be financially supported by both parents. A parent can’t avoid paying child support by giving up custody or parenting time rights.
Even if you voluntarily gave up your parental rights, or if your parental rights were involuntarily terminated, it is possible that you would still be required to pay child support.
Questions about Changing and Enforcing Child Support, Custody and Parenting Time
Yes. A child support order can normally be changed until the child turns 18 (or 19½ when child support is ordered to that age). There are two ways you can ask for a change in child support. You can ask the Friend of the Court (FOC) to review your child support order. If the Friend of the Court thinks there is a reason to change support, it will ask the judge to change the order. You can also file a motion asking the judge to change the order. You can use our Do-It-Yourself Motion to Change or Get Child Support tool to do this.
If your child gets public benefits, the Friend of the Court will automatically review your support order once every 36 months. You also have the right to ask for a review once every 36 months. But you can ask more often if you can show that either parents' income or costs have changed since the court issued the current support order.
Either parent can file a motion to ask the court to change an existing child support order. You can use the Do-It-Yourself Motion to Change or Get Child Support tool to prepare your motion. Examples of when you might file a motion are:
- When the parents informally change custody arrangements
- When either parent’s income changes
Child support isn’t automatically changed when parents change custody arrangements. The support amount is as stated in the most recent order until someone files a Motion Regarding Support and the judge signs an order changing the amount.
Past due child support amounts can't be retroactively modified. This means the court can’t change the amount of a child support payment after that payment is due. For this reason, it is important to file as quickly as possible if there is a reason to change child support.
To learn more about filing a motion to change child support, read Getting or Changing a Child Support Order.
In general, the Michigan State Disbursement Unit (MiSDU) collects and pays out child support payments. In most cases, child support payments are automatically taken from the payer’s wages through income withholding. MiSDU then forwards the payments to the payee. Both the payer and the payee get a copy of the income withholding order if support is paid this way.
Sometimes income withholding is not possible because the payer is self-employed or for other reasons. Then the payer must make payments directly to MiSDU. Sometimes the parties agree to a different payment arrangement. However, if payments are not made through MiSDU, the payer won’t automatically get credit for the payments. The payee must let the Friend of the Court know they received the payments.
Child support orders can be enforced whether the order is ex parte, temporary, final, or a modification of a previous order. Enforcement methods include:
- Withholding income from a payer’s wages
- Placing liens on real or personal property
- Garnishing state and federal tax refunds
- Suspending driving, occupational, sporting, and recreational licenses
- Court proceedings to hold the payer in contempt of court
Some of these methods may only be used for collecting past due support payments.
If child support payments are not made, the other parent or the court can schedule a hearing to show cause. The Friend of the Court (FOC) starts most actions to enforce support. If the court finds that the payer could pay some or all of the amount owed, the payer can be held in contempt of court. Penalties for contempt include any of the enforcement methods listed above as well as fines and jail time.
No. Parenting time can't be limited to enforce child support.
Yes. A child custody order is not set in stone. If you want to change your custody order, you can file a Motion Regarding Custody.
Changing a custody order can be harder than getting the first custody order. The parent asking for the change must prove that there is a proper cause or change in circumstances for the judge to reconsider custody. Then, that parent must convince the judge that it is in the best interests of the child to change custody. To learn more, read Changing a Custody Order.
Convincing the judge to change custody can be hard to do, so you may want to talk to a lawyer. If you need a lawyer and have low income, you may qualify for free legal help. Use the Guide to Legal Help to find lawyers or legal services near you.
If you want to ask the court to change parenting time, you can use our Do-It-Yourself Motion to Change Parenting Time tool to create the forms you need.
Parenting time can be changed if there is a change in circumstances or proper cause for the judge to reconsider parenting time, and if it is in the best interests of the child to change parenting time.
If you are really trying to change custody instead of parenting time, it will be harder to prove proper cause or a change in circumstances. If you want a significant change in parenting time, you may need to file a motion to change custody instead.
To learn more, go to the I Need to Change Parenting Time toolkit.
Questions about Moving with Children
No. If there is no custody order and you are worried the other parent may be planning to move, consider talking to a lawyer. You may want to get a custody and parenting time order so your ability to see your child doesn’t change. Your family law case may be more complicated if your child is moved from Michigan before it is finished.
After there is a custody order, your child can’t be moved out of Michigan without the judge’s permission. A parent also needs the judge’s permission to move within Michigan if the move is more than 100 miles from where the child lived at the start of the family law case, unless:
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The moving parent has sole legal custody;
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You agree to the move;
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You and the other parent already live more than 100 miles apart; or
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The proposed move would bring your homes closer together.
The parent who wants to move the child’s residence must ask the judge’s permission before moving. This is true unless a parent needs to move to a safe place to get away from domestic violence. If that happens, the moving parent must get the judge’s permission for the move, but it can be done after moving.
No. But if you are involved in a family law case and want to move, you should consider talking to a lawyer first. You may complicate your family law case if you move and disrupt the other parent’s ability to see your child, or if you move out of Michigan.
Yes, if you are moving out of Michigan. You also need the judge’s permission to move your child’s residence more than 100 miles from where the child lived at the start of your custody case, unless:
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You have sole legal custody;
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The other parent agrees to the move;
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You and the other parent already lived more than 100 miles apart when the case started; or
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Your proposed move will actually bring your home closer to where the other parent lives.
If you fear the other parent might take your children out of the country, file a motion asking the court to hold your children’s passports. If your children don’t have passports, contact the U.S. State Department to put an alert on your children’s names. If the other parent plans to get passports to travel out of the country with your children, the State Department will give you advanced warning.
Children with dual citizenship may be able to travel on a passport from the other country. The State Department can’t regulate passports from another country. Contact that country’s embassy or consulate to ask if they have a similar program.
But if the other parent has sole legal custody and has filed a motion asking the court for permission to move out of the country permanently, the court may grant that motion. See the article Responding to a Motion to Change Domicile for more information.
Questions about Domestic Violence and Custody
Domestic violence is serious and can impact the issues in your family law case. If the other party has been verbally, emotionally, or physically abusive, consider talking to a lawyer. If you have low income, you may qualify for free legal services. Whether you have low income or not, you can use the Guide to Legal Help to find lawyers in your area.
It is possible for the judge to award joint custody if the other parent abused you. The judge must consider joint custody if either parent asks for it. There are 12 factors the judge must look at to decide what custody arrangement is in your child's best interests. Domestic violence is just one of those factors.
The judge must also decide whether you and the other parent can make parenting decisions together. If your spouse has been abusive, this may be harder to do.
If the other parent abused you, it may be a good idea to get help from a lawyer. If you have low income, you may qualify for free legal services. Whether or not you have low income, use the Guide to Legal Help to find lawyers and legal services in your area.
Mediation can be helpful when the parties have equal power. Both parties must be able to say what they want, without being afraid or pressured.
Threats and control are common in relationships where one person is abusive. If the abuser is used to being in charge and making all the decisions, mediation probably won’t work well.
Mediation may be even more of a problem if the other party abused you and you don’t have a lawyer. If you have low income, you may qualify for free legal services. Whether you have low income or not, you can use the Guide to Legal Help to find lawyers in your area.
Yes. Domestic violence is serious. It is one of 12 factors the judge must consider when making custody and parenting time decisions. However, the judge might not necessarily give special weight to the domestic violence factor.
If your child's other parent has abused you, it may be a good idea to hire a lawyer. If you have low income, you may qualify for free legal services. Whether you have low income or not, use the Guide to Legal Help to find lawyers and legal services in your area.
The court can consider domestic violence even if your children didn’t witness it.
Yes. Domestic violence is one of 12 factors the judge must consider when making custody and parenting time decisions. This is true even if:
- The violence was not directed at the children; and
- The children did not witness the abuse.
Children can be harmed by domestic violence even if it’s not directed against them.
No. A PPO can’t be used to award custody of children. In some situations your PPO can limit or prohibit contact between the abuser and your children. The judge may order this if they think it is important for your safety or your children’s safety.
Under Michigan law, parental kidnapping is a felony. But it only applies to a parent who takes or keeps their child from the other parent in violation of a valid custody or parenting time order. It is not parental kidnapping for you to take your child with you to a domestic violence shelter if there is no custody order.
Even if there is a custody order, you can move to a safe place with your child to get away from the threat of domestic violence. However, you may need to get the judge's approval to change your child's residence. For more information, read the Articles and Common Questions in the I Need to Move with My Children toolkit.
If the other party in your case has a court order giving them parenting time, you must follow the order. You must do this unless:
- The judge changes the order, or
- Another court order prohibits parenting time (such as a Personal Protection Order)
You can prepare a motion asking the judge to change parenting time using the Do-It-Yourself Motion to Change Parenting Time tool. You can prepare a Petition for Personal Protection Order using our Do-It-Yourself Personal Protection Order (PPO) tool.
Your children most likely have a bond with their other parent. This may be true even if the other parent has been violent towards you. Think about what type of parenting time is best under all of the circumstances – not just based on how your children feel.
If there is a court order for unsupervised parenting time, you must follow it. You must do this unless the judge changes it or another court order prohibits it. If you think unsupervised visitation isn’t safe, consider talking to a lawyer.
If you need a lawyer and have low income, you may qualify for free legal help. You can use the Guide to Legal Help to look for legal help in your area. Your local domestic violence shelter may also be able to help you find a lawyer.
It depends. If you feel safe working out the parenting time schedule with the other parent, it’s probably okay to have a flexible schedule. Otherwise, you may need a specific schedule.
Consider asking for supervised parenting time if:
- You're worried about your safety;
- You're worried about your children’s safety; or
- The other parent has threatened to keep your children from you.
The court will appoint the supervisor, but you may want to provide ideas for possible supervisors. Examples include:
- A visitation center
- A domestic violence agency
- A grandparent
- Another relative
- A friend
Parenting time may also be safer for you if you exchange your children in a public place.