Modification of joint legal custody

      In other areas of this Blog, I write about the significance of having or of not having joint legal custody. Today, I write to make clear what usually makes a difference in whether parents initially--before any major child custody contest, can be awarded joint legal custody. At the conclusion, I explain some ramifications.

      In cases where one parent has not been involved and has to be "dragged kicking and screaming" into a family law case, it's not unusual for the court to award sole legal custody to the other parent. In my practice, I usually see this in either a paternity case or in a family support case.

Here are the typical scenarios:

      Situation A.  A child is born. No father is established as a legal father. The biological father doesn't sign an acknowledgment of parentage, the biological father doesn't support his child, the mother begins to receive Temporary Assistance to Needy Families (TANF) support, and the State intervenes to establish parentage. As a result a support order enters.  This case proceeds under the Paternity Act, MCL 722.711 et seq.

       The State's job isn't to deal with custody or parenting time. The State's only interest is a federally-compelled need to establish a support order. In this kind of situation, the custom in the counties where I practice is that the mother is typically granted sole legal custody.

      Situation B.  A child is born. The biological father signs the acknowledgment of parentage.  The parents either do not live together for long, or they never live together. This father doesn't bother to establish a child support relationship. In other words: There is nothing forcing him to pay child support and so he does not. The mother begins to receive Temporary Assistance to Needy Families (TANF) support, and the State intervenes to establish a child support order. An action is filed under the Family Support Act, MCL 552.451 et seq. (Paternity  does not need to be determined because the father has already acknowledged parentage). The State's job isn't to deal with custody or parenting time. The State's only interest is a federally-compelled need to establish a support order. In this kind of situation, the custom in the counties where I practice is that the mother is typically granted sole legal custody.

      Situation C.  A child is born. The biological father does sign an acknowledgment of parentage.  The mother takes the child and leaves a few months later because of domestic violence or another reason.  This father wants a parent-child relationship in the worst way. He files an action for custody under the Child Custody Act, MCL 722.21 et seq., allowed because he is an acknowledged father. In this situation, the father is more likely to be awarded joint legal custody because he is not a "do nothing" father as in Situations A and B.

MODIFICATION OF JOINT LEGAL CUSTODY

      Since 2003, parents struggling to modify custody orders have been met with the significant burden placed by the interpretation of the Child Custody Act in Vodvarka v Grasmeyer, which holds that a parent seeking to modify custody has a heavy burden of proof:

    In order to modify or change an existing custody order there must be proper cause shown or change in circumstances. MCL 722.27(1).  "(N)ot just any change will suffice, . .  . and there must be at least some evidence that the material changes have had or will almost certainly have an impact on the child(ren)." Vodvarka v Grasmeyer, 259 Mich App 499 (2003). Good cause justifying a change in custody is determined by looking at the best interest factors. “Good cause” is grounds that are “ ‘legally sufficient,’ i.e., they must be of a magnitude to have a significant impact on the child's well-being such that revisiting the custody order would be proper. Vodvarka, supra.

      Now along comes an unpublished decision, one of the first of which I am aware, that deals with modification of joint legal custody. See Jeffrey v Jeffrey,  Docket No. 278714. Mindful as I am about the fact that an unpublished decision is not binding upon a court, I rely upon that line of cases that holds that if the specific facts of the case are similar and the decision is, thus, informative or instructive, the trial court should consider it. [Citations omitted]

      In Jeffrey, the Court of Appeals held that the plaintiff mother could  not establish error where the trial court--faced with her motion to modify  the sole legal custody that had been awarded to her ex-husband to joint legal custody with both parents--denied her claims. The Court of Appeals affirmed the trial court's refusal to grant her joint legal custody.

      In the divorce judgment, the trial court awarded joint physical custody to both parents, but sole legal custody to the father. In affirming that decision, the COA  in Jeffrey v Jeffrey held:

    "According to the trial court, joint legal custody would not work because the parties were unable to have civil discussions or make joint decisions."

     In Jeffrey, the mother was unable to show a change in circumstances or good cause rising since the entry of judgment to the level required in Vodvarka [i.e., "that since the entry of the last custody order, the circumstances surrounding custody of the child, which have or could have significant effect on the child's well-being, have changed". ] Therefore, the court of appeals affirmed the trial court's award of sole legal custody to the father.

You can read Jeffrey v Jeffery here.

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Comments

[Jeanne M Hannah]

Lanli, as I wrote in the post above, it's really difficult to get this changed later. It sounds as though you are still in the temporary order phase, though.

Can you find a free legal clinic somewhere? You need to have a lawyer help you with this problem.

[lanli]

I am filing the divorce now and the friend of court recommend the joint legal custody and physical custody to me. the problem is I am not America citizen. If I can not get the legal status in America in one year, such as job visa, I have to back to my country. since I trust I have no way to communicate with my husband very well, it will be a big trouble if I want to take my baby to my country. I was abused by my husband, so I filed PPO. Can i appeal to get the sole legal custody based on my special case?

[Jeanne M Hannah]

Do you carry a copy of your custody order with you? It may help if you can show them the court order.

However, to put a stop to your husband's nonsense, I suggest that you continue to ask for a police officer and get them to make a written report, get an incident number, get a copy of the report, and then file a motion to show cause your husband for contempt of court. It should not take too many show causes to bring him into line. Jeanne M. Hannah

[Jeannie]

My ex-husband and I share joint physical and joint legal custody of our two daughters. Several times, he has refused to allow me to pick the girls up when my parenting time should begin. I have been told by police officers every time, that they cannot help me pick the girls up, because I'm not the custodial parent. When I point out that there is not custodial parent, or rather, that we are both the custodial parents, they insist that they cannot help in my situation. This is maddening. What legal recourse do I have?

[Jeanne M Hannah]

Hello Dave,

I don't have any legal authority to give you. However, it is logical to assume that the children will change schools. The specific authority you have is that the custody provisions in your judgment allow the move. If your ex-wife filed a motion to challenge your transfer of the children to a different school, I do not believe she could succeed in (a) getting the court to order you to leave them in the same school system because of the transportation difficulties or (b) making you pay "tuition" in order to get the old school system to let them attend.

Of course, if the schools in the area where you have moved are vastly inferior to those the children were in previously, that might make a difference.

[Dave]

Question - I have been divorced for almost 3 years. My wife and I share joint physical and legal custody. However, I am the primary custodial parent. My ex-wife has 9 overnights a month. I was awarded our marital home. I am now remarried and my new wife and I moved with the kids. My divorce decree allows my ex wife and I to move as long as we stay within a 25 mile radius of our marital home. My new house is within the 25 mile radius. Obviously this means that the kids will be attending schools in a new school district. If my divorce decree allows me to move up to 25 miles away from the marital home of my ex and I can I assume as the primary custodial parent that the kids will attend schools in the new school district? Are there any case laws to validate my argument?

[Assissotom]

Really great site with alot of good information!! Keep up the good work!!!!