MUSKEGON FAMILY COURT Grounds for an Award of Sole Legal Custody
A. Published Decisions - Ability of Parties to Co-Parent
Shulick v Richards, 273 Mich App 320 (2006). Plaintiff appealed the trial court’s order modifying Plaintiff’s sole legal and physical custody to joint custody. The appellate court found that the modification of custody was proper where it determined that “the parties had recently displayed a willingness to ‘talk about things and get things done.’” Note, however found that the trial court had violated the principle enunciated in Lombardo v Lombardo, 202 Mich App 151 (1993), to wit: the court cannot apportion decision-making authority in the event of an impasse between the parents.
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The Court of Appeals reasoned: that “there would be no reason for a trial court to have to conclude the parents can ‘cooperate and generally agree’ if the parents would not have to reach any agreement because of an apportionment of authority.”
Nielson v Nielson, 163 Mich App 430 (1987). Defendant mother appealed the trial court’s denial of her motion to modify joint to sole custody, complaining that the trial court erred because of the parties’ inability to cooperate. The Court of Appeals disagreed with mother, noting that “cooperation is only one factor for the court to consider in its decision to grant or deny joint custody.” The appellate court pointed out that the areas of disagreement between the parties were not those concerned with “basic child-rearing issues,” but rather, had to do with personal animosity and the parenting time schedule. SEE HTTP://WWW.DUMPMYSPOUSE.COM
Wright v Wright, 279 Mich App 291 (2008). Plaintiff father appealed the trial court’s determination that sole legal custody should be awarded to mother on the grounds that the parties would not be able to cooperate and reach agreements concerning important decision affecting their child’s welfare. Some salient facts: (1) Plaintiff began photographing Defendant mother at work in her daycare business, surreptitiously recording her in the day care center, (2) made repeated CPS complaints, as well as complaints to the daycare licensing board, none of which were substantiated, (3) coached the children to report “bad” things about their mother to their therapist, (4) made police reports against mother, (5) just prior to trial, took each of the two children to two separate hospitals alleging that they had been neglected by mother. “The trial court found, on the basis of strong supporting evidence, that plaintiff did not zealously pursue custody, closely monitor defendant, and scrupulously report defendant’s most minor transgressions because of any paternal assiduousness, but because he wanted to hurt and defeat defendant.”
Fisher v Fisher, 118 Mich App 227 (1982), lv den 214 Mich 919 (1982) In this case, the Defendant father raised a constitutional challenge to the trial court’s award of sole custody to Plaintiff mother, alleging an infringement of his right to practice his religion, which, according to him, included the right to make decisions on the religious upbringing of his children. The appellate court engaged in a brief but thorough analysis of balancing test between a fundamental constitutional right and the state’s compelling or vital interests, concluding that nothing is more compelling to the state than the welfare of minor children. In response to Defendant’s request for joint custody, the Court of Appeals stated: “In order for joint custody to work, parents must be able to agree with each other on basic issues in child rearing—including health care, religion, education, day to day decision-making and discipline—and they must be willing to cooperate with each other in joint decision-making. [cite omitted]. If two equally capable parents whose marriage relationship has irreconcilably broken down are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children. MCL 722.26a; MSA 25.312(6a). The establishment of the right to custody in one parent does not constitute a determination of the unfitness of the noncustodial parent but is rather the result of the court’s considered evaluation of several diverse factors relevant to the best interests of the children. MCL 722.23;MSA 25.312(3).” The Fisher Court also noted that it would not order Plaintiff mother to continue the religious upbringing of the children in the manner demanded by the father, pointing out that “to grant [father’s] request would be to entangle the court impermissibly in religious matters, the very transgression of which defendant now accuses the court.”
Wellman v Wellman, 203 Mich App 277 (1994). Plaintiff father appealed the decision of the trial court to award the parties joint legal custody but to award primary physical custody of the children to Defendant mother, arguing that it was essentially anomalous for the court to deny joint physical custody on the grounds that the parties could not agree, but to award joint legal custody in spite of that finding. The Court of Appeals disagreed, noting that the point of disagreement between the parties was focused on the parenting time schedule. The appellate court went on to note that there was “some evidence that plaintiff could contribute to the well-being and growth of his children through the making of joint decisions,” and noting that the parties “undoubtedly complimented each other in various respects.”
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Thursday, April 21, 2011
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