Monday, February 18, 2008


Summary of A Child Custody Case

CPSA 2/18/08 Posted here by:
By Attorney Terry Ray Bankert 810 235-1970


The court must make a determination on this issue before proceeding with the case by reviewing several issues.

There is an established custodial environment if over an appreciable period of time, the child looks to the custodian in that environment for the necessities of life.

The court must also consider;

a. the age of the child,

b. the physical environment and

c. the inclination of the custodian and the child as to the permanency of the relationship.

The court then makes a factual determination regarding whether there is an established custodial environment and it is not bound by the stipulation of the parties. In practice the judges tend to do what the parents have agreed upon.

To make a change in custody the court first decides who has the burden of proof by asking;

A. If there is an established custodial environment, a change in custody may be made only on clear and convincing evidence that the charge is in the best interest of the child.

B. If there is no custodial environment then custody may be changed on a showing by a preponderance of the evidence that the custodial arrangement is in the best interest of the child.

What can affect a custodial environment.

A. Prior custody orders- The mere existence of the child in a parents home does not creat an established custodial environment.

B. Custodial parent voluntarily relinquishes custody- All factores must be examined to determine if a new custodial environment exists. Public policy encourages a parent with difficulties to temporarily relinquish custody to resolve his or her problems.

C. In prejudgement cases where the parties are residing together the judge makes the determination on the prepponderance of the evidence.


The court must look at evidence and make judgements on child custody by analyzing how the facts apply the "Best Interest" statute ,722.23, here they are listed.

(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.

©) 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.

(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.

Child custody orders are subject to modification if it is in "the childs best interest" as described above.

Additionally it must be shown that there is a "proper cause" or a change in circumstances"

If you have questions about establishing or changeing child custody please call 235-1970 for a free consultation.