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 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:
--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 earlier 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 parties and 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.”
In Blackburn v Grenquist, 2012 WL 6097287 (Mich App 2012), an albeit unpublished case, the Court of Appeals affirmed an award of sole legal custody to the mother where the court found that the father had created conflict and was “manipulative and controlling in his interactions with [the mother].” In practice, the creation of conflict can be a path to sole legal custody because then a parent can claim that an award of joint legal custody violates MCLA 722.26a. See Schwiesow v Schwiesow, 159 Mich App 548 (1987). Unfortunately, a parent is often rewarded with sole legal custody after creating conflict instead of facing consequences. It would be wise for trial courts to consider which parent has created the conflict before applying MCLA 722.26a.
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 and harmonize discipline and other day-to-day parenting issues 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.
Isolina Ricci, Ph.D. has written extensively about child custody. In her presentation to the 1986 Annual Conference of the International Association of Family and Conciliation Courts, Dr. Ricci described four forms of parenting relationships:
1. “Exclusive” parenting or custody exists where one parent makes virtually all the decisions. Sometimes this parent will consider the other parent’s opinion, but not always. Dr. Ricci states that this form of decision-making can be successful, but it is obvious that this form of decision-making could seriously alienate the other parent.
2. “Parallel” parenting exists where both parents are involved with the child(ren) but have little to no interaction between each other. These parents tend to contact each other only in the case of an emergency or illness. Children of these parents feel reluctant to speak to one parent about the other parent, and the parents have enormous difficulty communicating with each other. In an extreme case, parents may actually avoid going to the same events involving the children.
3. “Shared” parenting often occurs where parents do not like each other but are able to communicate with each other effectively. Parents in these categories, according to Dr. Ricci, have a “business-like” relationship to each other. Obviously, this sort of relationship is better than either of those described in paragraphs 1 and 2 above. Third parties who are involved with the children are not fearful of contacting one of these parents, and the parents can tolerate participating in joint parent/teacher conferences and the like.
4. “Cooperative parenting” is the ideal. These parents have an actual “working relationship” with each other according to Dr. Ricci and have gone through the process of “forgiveness.” From Dr. Ricci’s description, it appears that these people are able to see ex-spouses or the other parent as a person and not just an “ex.”
In 1997, Dr. Ricci wrote: “Mom’s House, Dad’s House: Making Two Homes for Your Children. In 2006, Dr. Ricci wrote a sequel for the children themselves: “Mom’s House, Dad’s House for Kids: Feeling at Home in One Home or Two.” The best approach to custody and parenting time issues is for parents to try and see the world through the eyes of their children. A piano recital or a ball game is no “fun” for children who fear the drama that accompanies these events when parents combatants in a war, even a “cold war.”
If parents have joint legal custody and cannot make a decision about an issue, then one of the parties must file a motion with the court, and the judge will decide. If this happens too frequently, most judges will consider converting the custody to “sole legal” custody with the parent who seems most able to identify the child’s best interest and then make wise decisions.