Legal View: Legal custody, what does it really mean?

By Amy A. Yu

Daily Record Newswire

Many parties and practitioners often get caught up in the concept of “physical custody” while the significance of legal custody sometimes gets overlooked.

Michigan statutory law does not specifically define legal custody or otherwise clearly distinguish it from the concept of what is referred to as physical custody. However, the Child Custody Act does give some guidance in its definition of joint custody.

Pursuant to MCL 722.26a, joint custody is defined as when a child resides alternately for specific periods of time with each of the parents; or when the parents share decision-making authority as to the important decisions affecting the welfare of the child. The latter is what is often referred to as “legal custody.”

The important decisions affecting the welfare of the child usually refer to those decisions related to medical, educational and religious upbringing, according to Lombardo v. Lombardo, 202 Mich App at 157-158, (1993). However, this does not take away the authority of the parent who has the right to “decide all routine matters concerning the child ... [d]uring the time a child resides with [that] parent” (MCL 722.26a).

In fact, even without legal custody, a parent has many rights to information and decisions regarding the child that sometimes are unrecognized. For example, one of the many misconceptions parents have is that without legal custody, they will not have information regarding their child.

However, pursuant to the Child Custody Act, “a parent shall not be denied access to records or information concerning his or her child [if] 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.”

In addition, other state and federal laws allow “parents” and “guardians” access to school and medical records. The Family Educational Privacy Rights Act allows such access to records, and Michigan’s Revised School Code MCL 380.1137a also gives a noncustodial parent equal access to school records unless there is an order in place prohibiting such release. In addition to records access, this Act also gives parents broad rights to direct their children’s education and educational environment.

Parents, regardless of custodial status, also have access to their child’s medical records pursuant to the Michigan Medical Records Access Act.

However, the Medical Records Access Act has some exceptions, particularly to mental health service providers requiring the legal custodial status for access for children younger than 14. A child 14 years of age and older has the right to direct his or her own mental health services, for a period of time, and access to third parties is restricted.’

However, while noncustodial parents are allowed access to various records and a right to direct education, they may still not have the legal right to use this information to make the important decisions affecting the welfare of the child. But, even when parents share joint legal custody, they sometimes cannot agree and then must defer to the courts to make findings in the best interests of the child (Bowers v. Vandermeulen-Bowers, 278 Mich App 287 (2008)).

An out of state move or a move of more than 100 miles also could be considered an important decision affecting the welfare of the child because of the role legal custody plays in such a move. MCR 3.211(C)(1)(3) requires that every custody order must provide that the domicile or residence of the minor child may not be moved from Michigan without the approval of the court and a parent shall not change the legal residence of the child except in compliance with the Child Custody Act. This rule is often thought of as a “rubber stamp” requirement.

But, MCL 722.31, which is known as the “100-mile rule” and specifically refers to “legal custody,” states that if a “court order governing a child’s custody grants sole legal custody to one of the child’s parents,” then a parent does not have to comply with the requirements of this statute to move more than 100 miles away from the child’s legal residence.

The Brausch v Brausch, 283 Mich.App 339 (2009) case attempted to reason that this statute and court rule work in conjunction with one another and held that parties cannot agree to waive the 100 mile rule even though MCL 722.31 does not apply if the custodial parent has sole legal and physical custody. Either way, legal custody certainly provides some barriers to moving.

Of additional note, the outcome of Pierron v. Pierron, 282 Mich App 222 (2009), which is on appeal at the Michigan Supreme Court, may present more legal custody considerations. This case involves a dispute related to a change of school and move that was less than 100 miles in a joint legal custodial situation.

It seems that joint legal custody has become the common trend these days. However, it is not always. For example, sole legal custody is the default award in uncontested custody actions, most notable in paternity actions filed on behalf of a mother and courts only must consider joint custody upon the request of either party.

Additionally, joint legal custody will not be awarded in cases where the court finds that the parties cannot agree on essential decisions affecting the welfare of the child (Fisher v. Fisher, 118 Mich App 227, 324 NW2d 582 (1982)).

Certainly much more could be said about the status and implications of legal custody. Many issues and circumstances should be considered when negotiating or litigating legal custody with a strong emphasis on whether the parties will generally be able to agree on these essential decisions.

And if they can’t, which parent would it be in the best interests of the minor child to make these important decisions?

Amy A. Yu is a solo practitioner at Amy Yu, P.C., and focuses her practice in the areas of family law and collaborative law. She serves on the executive committee of the Family Law Section of the State Bar of Michigan. Contact her at (248) 932-0100 or ayu@amyyulaw.com. Gail M. Towne is a family law and collaborative law attorney at Lennon, Miller, O’Connor & Bartosiewicz, P.L.C., and is of counsel with Amy Yu, P.C. Contact her at (269) 381-8844 or posiecharter.net.