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Michigan: Family Law

Contents

  1. Family Law - Overview
  2. Divorce
  3. Child Custody

  1. Family Law - Overview

    The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce or possibly a separation. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sex photos/videos may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.

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  2. Divorce

    1. Introduction

      Michigan is a no-fault divorce state. The only grounds for divorce in Michigan is that there has been a “breakdown of the marriage relationship.” However, where adultery and misconduct is involved, a judge can consider this a “fault” as a factor in determining spousal support and property division.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 552.6 - Complaint for divorce; filing; grounds; answer; judgment.

        1. A complaint for divorce may be filed in the circuit court upon the allegation that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. In the complaint the plaintiff shall make no other explanation of the grounds for divorce than by the use of the statutory language.
        2. The defendant, by answer, may either admit the grounds for divorce alleged or deny them without further explanation. An admission by the defendant of the grounds for divorce may be considered by the court but is not binding on the court's determination.
        3. The court shall enter a judgment dissolving the bonds of matrimony if evidence is presented in open court that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.

    3. Cases

      1. McDougal v. McDougal, 545 N.W.2d 357 (Mich. Ct. App. 1996)

        • Procedural Posture: wife brought action for divorce and court divided assets, including patent rights obtained by husband; Court of Appeals affirmed; husband appealed.
        • Law: divorce, division of property.
        • Facts: Trial was held for divorce, with the main issue being proper allocations of patents and income, as the husband had designed a patent resulting in gross income. Evidence showed that both parties mistreated each other, but trial court found husband at fault for divorce awarding large division of property to wife.
        • Outcome: Though appropriate for trial court to find that divorce was the fault of the husband, fault is an element of equitable division, not a punitive basis for an inequitable division of marital assets. Even fault cannot be the basis for extreme financial penalties.
        • Special Notes: Michigan is a no-fault divorce state, but courts may and will take fault and mistreatment into account for division of marital assets.

    4. Practice Pointers

      Evidence of mistreatment cannot be used as justification for divorce but can be considered for division of assets.

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  3. Child Custody

    1. Introduction

      Michigan has extensive legislation regarding child custody under the Michigan Child Custody Act of 1970. The provisions are located at MCL 722.21-31, and provide e.g. the definition of the best interest of the child, provisions for custody disputes, powers of the court, provisions for joint custody, parenting time, etc. Relevant sections regarding custody disputes and award of custody when a parent is convicted of criminal sexual acts are excerpted below.

    2. Text of Statute(s)

      1. Mich. Comp. Laws Ann. § 722.23 - Best interests of the child; factors

        As used in this act, "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.

      2. Mich. Comp. Laws Ann. § 722.25 - Child custody dispute; presumptions and burden of proof; award; parent convicted of criminal sexual conduct

        (1) If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.

        (2) Notwithstanding other provisions of this act, if a child custody dispute involves a child who is conceived as the result of acts for which one of the child's biological parents is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of the Michigan penal code, 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, or a substantially similar statute of another state or the federal government, or is found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration, the court shall not award custody to that biological parent. This subsection does not apply to a conviction under section 520d(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520d. This subsection does not apply if, after the date of the conviction, or the date of the finding in a fact-finding hearing described in this subsection, the biological parents cohabit and establish a mutual custodial environment for the child.

        (3) An offending parent is not entitled to custody of a child described in subsection (2) without the consent of that child's other parent or guardian.

        (4) Notwithstanding other provisions of this act, subsection (2) does not relieve an offending parent of any support or maintenance obligation to the child. The other parent or the guardian of the child may decline support or maintenance from the offending parent.

        (5) A parent may assert an affirmative defense of the provisions of subsection (2) in a proceeding brought by the offending parent regarding a child described in subsection (2).

        (6) Notwithstanding other provisions of this act, if an individual is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of the Michigan penal code, 1931 PA 328, MCL 750.520a to 750.520e and 750.520g, and the victim is the individual's child, the court shall not award custody of that child or a sibling of that child to that individual, unless both the child's other parent and, if the court considers the child or sibling to be of sufficient age to express his or her desires, the child or sibling consent to the custody.

        (7) As used in this section, "offending parent" means a parent who has been convicted of criminal sexual conduct as described in subsection (2) or who has been found by clear and convincing evidence in a fact-finding hearing to have committed acts of nonconsensual sexual penetration as described in subsection (2).

    3. Cases

      1. Pierron v. Pierron, 765 N.W.2d 345 (Mich. Ct. App. 2009)

        • Procedural Posture: Appeal of order in the circuit court.
        • Law: child custody, best interest of the child analysis.
        • Facts: After divorce of parents, the court granted joint legal custody of the children to both parents but granted ex-wife sole legal custody. The judgment provided both parents were to be informed with respect to children’s schooling and be entitled to participate. Sometime after divorce was final, ex-wife purchased a new home some 60 miles away. She moved and attempted to enroll the children in a new school. On motion of the ex-husband, the court ruled that the children must remain in their current school district.
        • Outcome: Court of Appeals reversed. As a preliminary matter, the circuit court erred in imposing too high a burden of proof on the ex-wife. The court found that a 60-mile move would not fundamentally change the children’s custodial environment, and thus a lower burden was required to justify the move. In addition, the court reversed a number of the trial court’s findings because the trial court had failed to focus only on the impact of the change in school, as opposed to the larger impact of the change in residence.
        • Special Notes: this case provides a very in-depth analysis of the multiple prongs of the “best interest of the child” standard.

    4. Practice Pointers

      None at this time.

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