I was recently asked by a gentleman from Bloomfield, Michigan if he could obtain sole legal custody of his children.
When and why will the Michigan divorce courts award sole legal custody (as opposed to physical custody)?
Legal custody is basically the ability to share in decision making regarding the children's health and welfare, such decisions include religious upbringing and choice of schools. Physical custody generally regards with whom the child will primarily reside. In most cases joint legal custody is the norm.
The statutes in Michigan indicate that the courts shall consider joint custody at the request of a parent and shall state on the record the reason for granting or denying such a request. For joint legal custody to work, the courts have indicated that the 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. 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 legal custody of the children.
The determination as to which parent should have sole legal custody is then determined by the following best interest factors: (1) the love affection and other emotional ties between the parent and child; (2) the capacity and disposition of the parties involved to give the child love affection and guidance and to continue the education and raisin the child in his or her religion; (3) the capacity of the parties involved to provide the child with food, clothing medical care and other needs; (4) the length of time the child has lived in a stable, satisfactory, environment; (5) the permanence of the existing or proposed custodial home; (6) the moral fitness of the parties; (7) the mental and physical health of the parties; (8) the reasonable preference of the child, if the child is of sufficient age; (9) the willingness of each parent to facility the bond with the other parent; (10) domestic violence; (11) any other relevant factor.
The Oakland County Michigan case of Royce v Royce provides a relatively extreme example of a case where sole legal and sole physical custody was unavoidable. The divorce trial court found that the mother should have sole legal custody because the parties were unable to communicate or agree upon anything.
In this case there was a personal protection order issued against the father that prohibited contact and communication between the parties. Further, a psychologist that the parties met at church and subsequently provided them with marriage counseling characterized the parties as fiery foes and angry associates in their marriage and that they had an antagonistic relationship that affected their ability to communicate and solve conflict.
Further, several witnesses testified that the parties' disagreed on basic issues in child rearing including religion, education and discipline. The father had an authoritarian style that often culminated in spanking, screaming or yelling and confining someone to a room. These parents also disagreed on the importance of religion and education. The father believed that the children should do their chores, at the expense of education. In addition, according to the mother, the father crammed religion down the children's throats, while she believed that the children should be guided, but should be free to decide what they believe.
Finally, the court noted that the record reflected a deep-seated animosity between the parties and divergence in their opinions about how to foster the children's well-being. These issues affected even their ability to make a civil parenting time exchange.
It seems pretty clear in the Royce case that joint legal custody was not an option for the court. The parties could not agree upon any of the issues and chose to fight with one another rather than put aside their differences in order to guide the children.
Sole legal custody is appropriate in cases where the parties cannot agree regarding decisions about the children on an ongoing basis. If parents continue to return to court regarding such issues about their children, the court will sooner or later order one party to have sole legal custody even if it originally ordered joint legal custody in the divorce.