Thursday, March 31, 2011
Berrien County Trial Court Judge Warns Against Sole Legal Custody
It has been standard procedure in many law offices, including the Peter J. Johnson Law Office to request sole legal custody (that is sole power to make decisions regarding the care and upbringing) of minor children in cases where one or the other parent was not engaged and involved with the children. This has always been particularly true when that non-active parent was in default – when he or she had failed to come to court or answer the pleadings filed by the attorney. However, a few recent court of appeals decisions have led at least one Berrien County Trial Court Judge to hold off on giving one parent sole decision-making power.
A 2009 court of appeals decision, Brausch v. Brausch, has been interpreted to permit a parent with sole legal custody of a child to move out of state with that child without permission of the court. However, a close reading of the Brausch case states that the custodial parent still requires the permission of the court, but that the court need not take into consideration the statutory factors in reaching that decision. With either interpretation, the concern remains that the custodial parent could potentially move far enough away that the court-ordered parenting time becomes impractical. No parent is going to put his or her 8 year old on a plane every other weekend to have parenting time with mom or dad. Thus the rights of the non-custodial parent to have parenting time could be significantly inhibited.
On top of these concerns, the Michigan Court of Appeals recently published a decision in Dailey v. Kloenhamer that explains that sole legal custody is appropriate when the parents have demonstrated an inability to agree on significant legal issues of the child. In that case, the parties were unable to agree whether their daughter had asthma, and whether she should be tested for allergies. Other significant legal issues might include the proper treatment for a condition of the child, whether the child should see a therapist or counselor, whether the child should be placed in public, private, or home schooling, whether special education or extra-curricular educational assistance is appropriate, or other similar disputes. While the court does not specifically limit the award of sole legal custody to where such demonstrated inabilities exist, the case has been interpreted to require such a showing.
What does all this mean to clients looking to get custody of their minor children? It means that, from at least one Berrien County Trial Court Judge, the clients and their former partners had better get used to the idea of compromise, because the judge is not going to risk losing control of the parenting time situation by granting one party or the other sole decision making power. Without a “demonstrated inability to agree” clients and their former partners will be destined for a long and potentially contentious struggle to agree on what is best for their children.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have questions related to a Family Law matter such as a custody matter.