Joint Custody Must Always Be Considered When Requested

When parents of minor children cannot agree on custody issues, a family court judge, upon hearing evidence on the relevant factors, has many options to consider in resolving the dispute according to the law. There are issues of both “physical custody” and “legal custody” that must be evaluated. A parent with physical custody of a minor child makes the routine, day-by-day managing decisions where the child’s daily living needs are concerned, while a parent with legal custody of a minor child is empowered to make the “important decisions affecting the welfare of the child.” MCL 722.26a(7). Physical and legal custody can be placed in one parent, the other, or both. Or, as often is the case, a court may divide the custodial arrangement up by granting physical custody to one parent, and legal custody to both parents.

When joint custody is requested by at least one parent, the court must make a determination of whether joint custody is in the best interest of the minor child or children under the 12 “best interest” factors contained under MCL 722.23, and by evaluating whether the parents will be able to cooperate and generally agree with regard to the important decisions affecting the welfare of the child.

In a recently published decision, the Michigan Court of Appeals decided that a trial court cannot properly apportion decision making authority between the parents when they share joint legal custody over the children. In Shulick v Richards, the parties shared a child but were never married. They had joint physical and legal custody of the minor child, but the trial court gave to one parent the decision making authority for medical related decisions and gave to the other parent decision making authority for educational decisions affecting the child. On appeal, the appeals court reversed the trial court judge’s decision, stating that “joint custody means, in part, that the parents shall share decision-making authority as to the important decisions affecting the welfare of the child”, and since joint custody arrangements are only theoretically available where parents will be able to cooperate and agree, it makes no sense to apportion important decision making functions of the parents as to important matters, such as medical and educational issues.

Whenever parents of a child cannot agree on important matters such as education, religion, medical procedures, etc., it is a trial court’s duty to determine the issue “in the best interest of the child.” Custody of a minor child is subject to court order, and therefore custody orders are subject to change based on a material change in circumstances. Questions usually arise over whether the alleged material change in circumstances is sufficient to warrant an alteration in the custodial placement of the minor child, when the facts are viewed under the 12 “best interest factors” governing the evidence and the court’s decision. Custody changes are very important matters that must be considered carefully. However, if a party believes that a change in custody is in the best interest of a minor child, it is important to consult with competent counsel in evaluating the likelihood of succeeding on a change in custody, and in preparing the case properly by marshaling appropriate evidence that will enhance the likelihood of success. This is particularly important when the child at an impressionable age and the present circumstances indicate potential danger due to neglect or abuse.

If you have any questions or concerns regarding divorce, custody, or support issues, please contact McCroskey Law Offices.

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