Faupel, Fraser & Fessler

What is joint custody?

What is Joint Custody?

Legal custody or decision-making regarding the children can be sole (i.e., vested with one parent) or joint (i.e., shared by both parents). In the recent case of Shulick v Richards, 2006 WL 3734693 (12/19/06 Mich App), the Court opined:

`Joint custody' means, in part, that the parents shall share decision-making authority as to the important decisions affecting the welfare of the child. MCL 722.26a(7). Medical and educational decisions are clearly 'important decisions affecting the welfare of' the children. See, e.g., Lombardo v. Lombardo, 202 Mich App 151; 507 NW2d 788 (1993). Thus, the issue becomes what is meant by the phrase, 'share decision-making authority.'

In Shulick, the trial court had apportioned the decision-making between the parents, with plaintiff mother having primary responsibility for making educational decisions and defendant father having primary responsibility for making health decisions if the parties could not agree on decisions. The Court of Appeals held that it was improper to apportion decision-making and call it "joint." If the parents cannot cooperate in making decisions relating to the children, they are not candidates for joint legal custody.

MCLA 722.26a sets forth the factors to consider in awarding joint legal custody. MCLA 722.26a(1) provides:

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 ["best interest" factors].

(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.

In Shulick, the trial court had focused on several factors leading it to believe that joint legal custody was possible: (1) the parties' recent display of a willingness to "talk about things and get things done"; (2) the recent improvement in the parties' communication with each other despite some personal animosity and communication problems in the past; (3) defendant father's belief that the parties could work together for the overall best interests of the children; (4) plaintiff mother's interest in having defendant's help and input in making educational decisions for the children; and (5) evidence that the parties had been able to cooperate and compromise in redesigning some of their holiday parenting time without resort to the court.

The decision in Shulick seems to set forth some basic requirements for joint legal custody:

--mutual respect;

--effective communication;

--cooperation; and

--a willingness to subordinate one's own self-interest to that of the children.

On the other hand, in Herlocher v. Gilbert, 2004 WL 2177049 (Mich App 2004), the Court of Appeals affirmed the conversion of joint legal custody to sole legal custody based on the trial court's finding that "the parties shared an acrimonious relationship and that the parties lacked the ability to be consistent and support each other in decisions regarding the children." The Court noted the trial court's conclusion: "the parties cannot agree and ... haven't agreed, and they won't agree. This impasse must stop." The Court of Appeals in Beaton v. Beaton. 1998 WL 1993003 (Mich App), relying on the early case of Fisher v. Fisher, 118 Mich App 227, 232; 324 NW2d 582 (1982), opined as follows: "A joint custody arrangement is inappropriate when the parties are unwilling to cooperate with each other and unable to agree on basic child-rearing issues such as health care, religion, education, day-to-day decision making, and discipline." In Hurner v Hurner, 2001 WL 1153177 (Mich App), the court was actually influenced to deny joint legal custody where, in addition to an acrimonious relationship between the parties, the parties had dramatically different parenting-styles and were seemingly unable to be consistent and support each other when it came to disciplining their son. One parent was almost "militaristic" while the other parent was easygoing and unrealistic about the boy's behavior problems and what was needed to make improvement.

In Wellman v Wellman, 203 Mich 277 (1994), the Court of Appeals noted that where parents' decision-making styles complemented each other, it was not an abuse of discretion to award joint legal custody even though shared possession did not seem ideal. There is a wiggly line between partiesand cases that are candidates for joint legal custody despite some challenges in communication and some history of arguments and those cases that will just result in returns to the court for decisions if joint legal custody is awarded. In the Herlocher case cited above, the Court of Appeals (and the trial court) were convinced that the award of joint legal custody at the time of the original judgment was simply "not working."

Further, in the earlier case of Lombardo v Lombardo, 202 Mich App 151 (1993), the Court of Appeals held that educational and health decisions are among the decisions affected by a grant of joint legal custody. Certainly there are even more areas that are impacted, such as approval of an IEP for a special education student, enrollment in a gifted program, enrollment in psychotherapy, enrollment in a private or parochial school (or one in a different catchment area), participation in extracurricular activities, responses to criminal proceedings involving a minor, permission for tattooing and body piercing, application for a drivers license, and others. While day-to-day issues are normally decided by the parent in possession, the ideal in a case of joint legal custody is for parents to coordinate discipline and dating so that the children receive a consistent message as to behavioral norms in the family despite the divorce. In Lombardo, the court noted that if parents cannot agree on major decisions, then it is the court's responsibility to decide issues for them.