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Thorn Legal Memo
Under current Michigan law, Joseph Thorn will most likely be granted custodial rights to his son Ryan.
The family court evaluates a parent's right for custody of a child using Mich. Comp. Law Section 722. In particular, the court determines the overall "best interest" of the child. Under this statute, best interest is defined using 11 factors which include:
(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 any remedial care recognized and permitted under the laws of this state in reference to medical care and other material needs.
(d) The length of time the child continuity.
(e) The permanence as a family unit of the existing or proposed custodial 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 involved.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preferences.
(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.
These factors are held by the court as a means of analyzing the overall fitness of a parent to act in a parental role with custodial rights. Under Jones v. Jones, "these factors are to be considered, evaluated, and determined by the court." No one factor determines the fitness of the parent, and both parents are evaluated under each criteria.
Common Law Interpretation of factors A, C, and F
Factor A evaluates, "The love, affection, and other emotional ties existing...
Under Jones v. Jones, the refusal of one parent to permit emotional ties by the other parent cannot be counted against the party. However, under Rose v. Rose, it was held that intentional avoidance of a relationship with the child results in the parent failing to meet this requirement.
Factor C. evaluates, "The capacity and disposition of the parties involved to provide the child with food, clothing medical care or any remedial care recognized and permitted under the laws of this state in reference to medical care and other material needs." Under Rose v. Rose, it was held that reviewing a parent's capacity to support a child, the court may evaluate whether the parent has to date shown any capacity or disposition to provide for the child's material support. Additionally, under Jones v. Jones, the prevention of one parent to permit support by the other does not result in a negative finding against the parent who was prevented from giving.
Factor F. evaluates, "The moral fitness of the parties involved." Under Rose v. Rose, "A history of substance abuse, criminal activity, or violent behavior will call into question a parent's moral fitness to raise a child." This was further expanded in Winston v. Pipes, which stated, "having a record of criminal activity or substance abuse does not automatically bar a parent form gaining custody of a child if that parent shoes what he or she has been rehabilitated."
Application of Fact Pattern
Factor A
The first factor the courts evaluate is the love, affection, and other emotional ties existing between the parties involved and the child. Here, Mr. Thorn visited his son at the hospital after his birth. Ms. Thorn instructed him to not visit her or the child again after she left the hospital and moved in with her mother. Regardless of this instruction, Mr. Thorn has kept in contract with Ms. Thorn's mother and attempted to offer financial assistance in the care of the child. Thus, Mr. Thorn has attempted to establish a relationship with his child, but has been prevented from doing so by Ms. Thorn. Mr. Thorn's efforts will most likely result in the court finding this requirement met.
Factor B
The second…
references." Is also a moot point as Ryan is not old enough to communicate his preference.
Factor J
The next factor considered by the court is, "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." See factors A and B. For this argument. It should also be emphasized to the court that Ms. Thorn has been unwilling to facilitate any close relationship for Mr. Thorn with Ryan. In fact, upon leaving the hospital, Ms. Thorn specifically instructed Mr. Thorn not to visit her at her mother's house and failed to give Mr. Thorn any information as to his son's location when she moved out of state.
Factor K
Factor K. evaluates, "Domestic violence, regardless of whether the violence was directed against or witnessed by the child." See factor F. For argument.
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