Lately I have seen numerous posts on Facebook and read many articles on dealing with an uncooperative co-parent. One area many of our family courts repeatedly fail in is in assigning legal custody of a minor child. There is a common misconception that legal custody is “handed out like candy” and “everyone gets joint legal custody”. Legal custody is a very powerful concept and should only be shared in situations where parents are able to work together.
Legal custody governs a few very important concepts in family law. On its face legal custody vests the power of making important decisions for a minor such as medical, educational, religious decision in an individual or individuals. When Joint legal custody is awarded any items which cannot be jointly decided, such as a change of school district, must either be brought before the court for a decision or abandoned. Bringing this type of issue before the Court can often times take months and cost several thousands of dollars.
Joint legal custody also can effect where the custodians can live. When there are joint legal custodians a child has a legal residence with both parents. If a joint legal custodian wishes to move their home more than 100 miles from where they resided at the time joint legal custody was awarded they must seek approval from the other legal custodian or from the Court. Again, this can take several months and cost thousands of dollars.
There are times after a judgment is entered when one parent will simply disappear from the life of a child. Often times failing to visit or support a child. A parent’s new spouse may wish to adopt the minor child in a step-parent adoption. If the biological parent’s are sharing joint legal custody a step-parent adoption may not be possible. Without the consent of the biological parent whose rights would be terminated by the adoption this adoption cannot take place. Often times the type of parent who would abandon the child and fail to support the child is not willing to consent to the adoption.
Michigan law requires that the Court shall advise the parties in a custody dispute of joint custody. Upon the request of one of the parties the court shall consider joint custody. Joint legal custody is not required. upon considering an award of joint custody the court shall consider whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child. The Michigan statute with regards to joint legal custody is MCL 722.26a which states: 722.26a Joint custody
(1) In custody disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request. In other cases joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
(a) The factors enumerated in section 3.
(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
(2) If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child.
(3) If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
(4) During the time a child resides with a parent, that parent shall decide all routine matters concerning the child.
(5) If there is a dispute regarding residency, the court shall state the basis for a residency award on the record or in writing.
(6) Joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
(7) As used in this section, “joint custody” means an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents.
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
Joint legal custody is a great concept in theory. In practice joint legal custody does not always work. There can be no disputing that children are better off when there parents can work together. There can be no dispute that an attempt to force parents who are incapable of working together, for whatever reason, can be detrimental to children. Do not be pushed into agreeing to joint legal custody. Joint legal custody is an option and not a foregone conclusion.
For all of your family law needs, including custody, parenting time, and divorce call The Law Office of Michael E. Thomas PLLC at 248-855-6477, we can help you..