What is Physical Custody in Michigan?

February 7, 2016 - Categories: Legal Articles

Clients often ask us to seek "sole physical custody" of their child, because they believe that it will give them more rights, or more power of the decision-making and care of their children, or more protections against the bad behaviors of the other parent.

Unfortunately, "sole physical custody" will not really solve anything. "Physical custody" is almost meaningless in Michigan, and has no legal teeth. In general, it is intended to refer to which parent(s) have the ability to make day-to-day decisions regarding the child's welfare, as opposed to legal custody, which focuses on the more major decisions such as education, medical, etc.

However, in practice, physical custody does not offer any protections. The courts generally appear to assume that whoever has the child for their parenting time will likely be making the mundane day-to-day decisions that are necessary to be made during their parenting time, regardless if the other person has "sole physical custody." There are also no statutes that mention physical custody or allocate any special rights to the one who has this designation. Legal custody, however, does have statutory protections and language around it.

The courts have primarily deferred to the parenting time schedule as guiding actual "physical custody." One could theoretically have "sole physical custody" and yet have 50/50 parenting time, for example. Sole physical custody also does not dictate who the child actually or primarily "lives" with. Rather, if there is joint legal custody, the law says that the child has a "legal residence" with "both parents," even if the only one parent has "sole physical custody." Furthermore, the parenting time schedule itself really dictates who has the "primary" residence, simply by the fact that the child lives with one parent more days than with the other parent each week.

The best way for a parent to get maximum power, protections, and right is to get: 1) sole legal custody (so that the parent can make all major decisions without his input and without court approval); 2) the most days and overnights of parenting time as the court will allow; and 3) very specific language throughout the final custody/divorce order that spells out exactly which activities and behaviors that the parents must either perform or are prohibited from doing (so that if the other parent violates, then it will be easier to prove the violation to the court and therefore get some sort of remedy, such as finding the other parent in contempt of court).

As shown above, "legal custody" is really the most important type of custody, along with a good parenting time schedule and a very detailed order with many "must do's" and "must not do's" for each parent.