Sole Legal Custody Defined
Sole legal custody is one of the potential custody arrangements in Michigan. It grants all authority to make major decisions at the sole discretion of the custodial parent, subject to parenting time. This is opposed to joint custody, in which both parents share decision-making authority over the child’s life.
Sole legal custody may nevertheless permit a non-custodial parent to enjoy a substantial role in his or her child’s upbringing by allowing frequent parenting time.
Unlike joint legal custody, sole legal custody conveys full authority over important decisions in a child’s upbringing. The terms "primary physical custody" and "primary caregiver" are sometimes confused with sole legal custody, but a sole legal custodian does not always serve as the primary caregiver. Nor is primary caregiver status always necessary to be an effective custodian.
Custody decisions favoring sole custody can be quite common. A survey found that 45% of mothers and 40% of fathers were granted sole legal custody of their children . Joint legal custody was awarded about 10% of the time, shared legal custody 15% of the time, and equal legal custody 4% of the time. The most common decision, 26%, granted partial legal custody.
Parents are no longer referred to as "custodian" and "non-custodian," as was common up to a couple of decades ago. Many family law advocates believe that joint legal custody is favored, with a presumption for equal legal, regardless of day-to-day physical custody. Courts tend to start with a partial legal custody position.
Many judges tend to award sole legal custody where parents live far apart or where high conflict is prevalent in the family history.
Sole legal custody provisions are now referred to in the law as sole legal custody. "Legal custody" refers to one parent being in charge of decisions regarding education, medical care, religion, means of discipline, location of domicile, and other long-term decisions for a child.
Michigan Sole Legal Custody Laws
The Michigan Child Custody Act governs the issue of sole legal custody, with an emphasis on the child’s best interests. According to the act, the cause of the divorce or the relations between the parents doesn’t play a role in having sole legal custody awarded to one of the parents. Rather, a judge must determine whether an award of sole legal custody to a parent is in the best interest of the child.
A lawyer for one of the parents in a custody case may ask a judge to award sole legal custody of a child to a parent. The plaintiff has the burden of proof. Sole legal custody is less common than joint custody, although some judges may award sole legal custody rather than joint custody if the non-custodial parent doesn’t enjoy a close relationship with the child.
Judges take a complete view of all the evidence before them when granting sole legal custody. Behavior in pre-marital relationships and extramarital relationships may end up being used against a parent for losing custody. The judge generally does not consider income, but will consider the income of both parents when determining child support. The judge looks at both parents to determine how much time each one spends with the child.
One of the biggest considerations in custody cases is how much time the non-custodial parent spends with their child. Joint custody favors parents that are not primarily living together but still dedicated to parenting their children equally. In a situation where a parent lives a far distance from the child, awards of sole legal custody are more common.
The Uniform Child Custody Jurisdiction Act governs matters concerning the custody of children, even if a custody case involves multi-state issues. For example, if parents were married in Michigan, but lived in West Virginia while they were separated, the attorney for one parent may ask the Michigan court to have jurisdiction over the custody proceedings.
Factors That Influence Judges on Custody
Michigan courts will award sole legal custody only after considering the best interest of the child standard, which is the benchmark for all decisions regarding children in divorce cases. The 12 factors that the trial court needs to take into consideration in determining the best interests of the child are as follows:
(a) The love, affection, and other emotional ties existing between the child and the child’s parents.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance.
(c) The capacity and disposition of the parties involved to provide the child with the material needs of life.
(d) The length of time the child has lived in a stable environment and the desirability of maintaining continuity.
(e) The permanence, stability, and the family unit of the proposed custodial environment.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of the parties to facilitate and encourage a loving relationship with the other child.
(k) Domestic violence, regardless of whether the injury occurred to the individual or property.
(l) Any other factor considered to be relevant by the court.
These factors do not carry the same amount of weight. The statute explains that, in the circumstances of each case, some of the factors may weigh heavier than others. Michigan courts further explain that "no single factor is controlling or determinative." Evidence that shows the parent seeking sole custody has acted in ways that damaged the child is often considered as evidence that sole legal custody granted to that parent is not in the child’s best interest.
How to Obtain a Sole Legal Custody Order
Applying for sole legal custody in Michigan requires an understanding of the legal process and the requirements that must be met for a court to make such a determination. The process generally begins at the time of divorce, but it’s also possible to file a petition for modification with the court if you’re already divorced and need to change legal custody arrangement.
Sole legal custody can be requested by one or both parents during the proceedings for divorce. The filing parent must complete a motion form and then submit it to the judge prior to the final hearing. If the couple does not have the forms completed prior to the hearing, they may request that the forms be submitted into evidence at that time. The motion to request sole legal custody should include the names of the children for whom it’s requested, the reason for requesting sole legal custody, and a general summary of any previous actions related to custody or parenting time that might have occurred.
Sometimes, parents will agree to a provision for sole legal custody when they file their divorces, even if they’re able to share joint legal custody . In this case, it’s important to get it as a court order, so it can’t be rescinded at a later time against the wishes of one parent. It’s also not necessary to be divorced to file a request for sole legal custody. Sometimes, parents know they want sole legal custody and will file before the birth of the child or shortly thereafter. This is a proactive step to try to avoid contention over parenting time issues later on; however, it can be difficult to obtain a court order in this instance.
If an action is filed with the court, it may require a court operated mediation. Resolution of custody issues can often be worked out between parents without the need for mediation or a court hearing, but sometimes it’s required by the judge. These processes involve meeting with an independent mediator, who assists the parents in coming to an agreement about custody. Based on these recommendations, the judge issues an order as to custody. Financial considerations involved in working out a parenting plan of custody may be complicated in some situations. The best consideration is that the children come first and often a cooperative, shared resolution can be achieved by parents regardless of whether they’re living together or apart.
Benefits and Drawbacks of Sole Legal Custody
Sole legal custody has both advantages and disadvantages. On the positive side, sole legal custody allows one parent to make all of the major decisions for the child and to have a consistent set of rules to enforce. If things work out as you have envisioned, we have one person to call and consult with as to future decisions. It can be easier to make decisions without constantly consulting with the other parent. For example, if the parents disagree about a school choice, the child would attend just one school, rather than switching back and forth every six months or year. Or, a conflict could arise about which doctor the child should see, and that dispute would be resolved by looking at one person’s views rather than two people’s opinions. While it may sound nice to frame these arguments this way, the truth is that the decision making body gives up a tremendous amount of power which can have many unintended consequences.
In some cases, the parties will agree to joint legal custody simply to avoid the fight. Adjudicating an issue of legal custody may require a 3 day trial and hearings before Friend of the Court. The cost is enormous and does not lead to a great end result. But, in a situation where the parties agree and can work together, joint legal custody makes good sense.
Disadvantages to legal custody are that the non-custodial parent has no say in major decisions. Therefore, all of those decisions are left to the custodial parent. Also, when a minor is old enough to have preferences, those preferences may be ignored. In a case involving a 14 year old daughter, the mother exercised sole legal custody. As such, the daughter could not participate in after school cheerleading activities, even though that was her passion and she devoted countless hours each week to the team. At age 13, the child was entitled to be heard but her parent’s decision prevailed. This situation upset the child, who was devastated to learn that she could not cheer. In this particular case, the child’s preference was clearly valid and would have been honored had the decision been jointly weighted. The custodial parent however did not review the opinion of the child before excluding her from the activity.
The parent-child relationship may be impacted by legal custody. Parental input is often sought when making decisions and when that input is not given, negative feelings about the other parent can result. Parent A may want to buy the child a new car, but Parent B disagrees. Parents can usually agree about bigger decisions like changing schools, religious teachings, or health care. But it is day to day decisions that can create problems. These include how to spend allowances, homework, chores, and social activities. Coordinating how homework is done or when school events are attended is much easier with small children than it is with adolescents, 12 and above. When the children enter high school they begin trying to separate themselves from their parents. They start to think for themselves and question authority. They resist rules they disagree with and submit pressure from peers. These factors can add to the anxiety felt by the children as they move between homes. At some point, the children need to stage their own rebellion. And in many cases, that rebellion is against the non-custodial parent. More times than not, the children will latch on to the parent they are doing to the most harm. The parent becomes the bad parent, while the other parent is seen as the appropriate parent. The children develop a realization that the better they are treated, the less freedom they have. Children will choose to be bad in their parent’s house to get the most attention. This can wreak havoc in families.
Changing Existing Orders of Custody
Custody modification may be obtained through a motion to change custody. Such a motion is generally only appropriate if the existing court order contains some stipulation that the order can be modified or the parties file a written agreement with the same terms as the order and, in this case, the judge usually signs the agreement as an order. Even if the entire agreement is not acceptable to the judge, if there is even a portion of the agreement that is acceptable, a judge may still issue an order. A final order can also be modified if it is more than one year old and extraordinary circumstances exist.
Under MCL 722.27(1), pursuant to a motion for change of custody, a parent may file a motion to change legal custody at any time. Of course, the motion must be filed with the court in which the original custody order was made and granted. This motion can only be successful if the child’s best interests are served by a change in custody. Modification of legal custody is more likely to be granted if the parties stipulate to the same.
In Michigan, a standard of "clear and convincing evidence" is necessary to satisfy the burden of proof on the motion. This means that the burden of persuasion is much higher than in other states , where the rules of evidence do not apply. In fact, the Supreme Court of the state has given judges such wide latitude concerning such issues that they have held that the trial court’s findings will not be disturbed on appeal unless the lower court has abused its discretion.
The burden of showing that a custody order should be modified is placed upon the parent who is attempting to change the order. The court will generally grant a motion to modify legal custody only if clear and convincing evidence shows that the motion is filed in good faith and the best interests of the child would be served by a modification (see MCL 722.27(1)).
In deciding whether to award sole legal custody, the court should first consider the child’s personal preference. While it is generally held that parents should have sole legal custody, there are exceptions. If the main motivation of the parent granting partial custody to the other parent is to give the other parent an unfair advantage in the event of a future divorce, the court may rule against awarding such an advantage.
A modification can be obtained by filing of a motion, notice of hearing, supporting documents and an affidavit. The court must find that the best interests of the child require a change in parenting time or custody.