After a divorce or custody determination, it is not uncommon for one parent to receive primary physical custody and the other parent to receive reasonable parenting time with the children. An award of physical custody means that the child has the right to reside with that parent. However, the noncustodial parent often retains legal custody of the children, meaning that he or she can participate in major life decisions involving the child no matter what the living situation is. Just because a parent has the children for the majority of the time doesn't mean that the other parent can be shut out.
MCL 722.26a(7)(b) of Michigan's Child Custody Act states that, when both parents have joint legal custody of the children, "[t]he parents shall share decision-making authority as to the important decisions affecting the welfare of the child." Some of these "important decisions" include, but are not limited to, the following:
- EDUCATIONAL DECISIONS: Placement of a child in a particular school district (or a change therefrom) is an important decision affecting the child's welfare so both parents must agree on that decision. Bowers v VanderMeulen-Bowers, 278 Mich App 287; 750 NW2d 597 (2008). Likewise, a decision to move a child from homeschooling to a regular school district is also subject to a joint legal custody decision. Parent v Parent, 282 Mich App 152; 762 NW2d 553 (2009).
- MEDICAL DECISIONS: Parents with joint legal custody must agree on major medical procedures or surgery involving the minor children. Additionally, child vaccinations are also considered a joint legal custody matter that both parents must consent to. Kagen v Kagen, unpublished per curiam opinion of the Court of Appeals, issued July 14th, 2015 (Docket No. 318459).
- RELIGIOUS UPBRINGING: Parents with joint legal custody must agree on the religious upbringing of their child, including what church that the child may be baptized in. Roller v Roller, unpublisher per curiam opinion of the Court of Appeals, issued January 14th, 2016 (Docket No. 324130)(NOTE: contempt for violating religious upbringing in joint custody order was purged in this case because trial court did not advised Plaintiff of her rights against self-incrimination).
- CHANGE OF DOMICILE OF MINOR CHILD: A child whose parents have joint legal custody of the child governed by court order has a legal residence with both parents. "[A] parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time [that the order was entered]" unless the other parent consents or the court grants permission for the change of residence. MCL 722.31(1).
Additionally, "a parent shall not be denied access to records or information concerning his or her child because the parent is not the child's custodial parent, unless the parent is prohibited from having access to the records or information by a protective order." MCL 722.30. "Records or information" includes, but is not limited to, medical, dental, and school records, day care provider's records, and notification of meetings regarding the child's education.
When the parents as joint legal custodians cannot agree on important matters, then it is the court's duty to determine the issue in the best interests of the child. Lombardo v Lombardo, 202 Mich App 151; 507 NW2d 788 (1993). The parent who wants to change the status quo has the burden of either seeking consent from the other parent or filing a motion in the circuit court with jurisdiction over the case to ask the judge to make a decision. The parent seeking the change has the burden of proof of showing that any modification is in the child's best interest.
A parent who unilaterally makes decisions subject to joint custody with consulting the other parent can be subjected to penalties and sanctions. The court may exercise the powers of contempt to punish the offending parent. The penalties for contempt can include paying any fines (up to $7,500.00), costs or expenses of the proceeding, or coerce the offending parent to comply with the order by threat of imprisonment up to 93 days until compliance is achieved. MCL 600.1715. If there was an actual loss or injury to other parties as a result of the offending parent's actions, the court can also order civil sanctions to compensate the innocent parent for out-of-pocket expenses that include attorney's fees. MCL 600.1721. If the offending parent already moved away with the child or changed school districts without permission, then the court can order the child to be returned. The purpose of joint legal custody is for the parents to communicate and co-parent with their children to maintain stability and continuity. Another possible penalty of violating the joint custody order may be, if requested by a party, granting sole legal and physical custody to the innocent parent. This is an extreme remedy, but it can't be ruled out if the judge determines that it is in the best interests of the child.
Our law firm has extensive experience in representing parents who have been aggrieved by the other parent's noncompliance with custody or parenting time orders. If you are a noncustodial parent and have questions about the rights to your children, do not hesitate to contact the experienced family law attorneys at Kershaw, Vititoe & Jedinak PLC.