By: Dennis M. Germain, Michigan Family Law Attorney & Counselor at Law
This article is Part 2 of a 3 Part series about legal rights associated with parenting time (a.k.a. parental visitation, physical custody, etc.) in Michigan. This article addresses a parent’s legal right in Michigan to make routine decisions regarding the children during his/her parenting time. Part 1focused on a parent’s right to a specific parenting time schedule. Part 3 addresses modifying parenting time versus modifying custody in Michigan.
BACKGROUND ON CO-PARENT DECISION-MAKING
This article particularly applies to parents who are currently under orders for “joint legal custody” over their child(ren). As a family law attorney who frequently deals with custody and parenting time issues, I am often faced with the following questions:
“When making decisions regarding our children, when do I have to consult with the other parent, and when can I make the decisions on my own?”
“My ex-spouse keeps micro-managing me during my parenting time with my child. How do I get her to stop?”
“My ex-husband keeps criticizing my parenting abilities. Do I have to listen to his input?
“I want unfettered discretion to raise the children how I prefer during my parenting time. Is that possible?”
“How does joint legal custody work?”
In general, for parents with joint legal custody, “important decisions” must be made jointly. But “routine decisions” can be made individually by the parent who is currently exercising his or her parenting time. But how do we identify if a decision is important or merely routine? If not clarified in the judgment or order governing custody or parenting time, it can sometimes be difficult to determine whether a specific decision is important or routine. The following sections of this article offer some guidance.
“IMPORTANT DECISIONS” AFFECTING THE WELFARE OF THE CHILD
MCL 722.26a(7)(b) of the Michigan Child Custody Act states that, when two parents have joint custody (specifically “joint legal custody” pursuant to case law):
“[T]he parents shall share decision-making authority as to the important decisions affecting the welfare of the child.”
Some common examples deemed to be “important decisions” include decisions related to (1) medical, (2) educational, and (3) religious upbringing. FN1. An easy example of an important decision is deciding which school or school district to enroll a child. That decision cannot be made individually. Both parents must agree. FN2. It is also my observation that most Michigan family law attorneys agree that extracurricular activities also falls under the category of important decision making.
If both parents cannot agree on an important issue, one parent will have to petition the court to make the decision for them, based on the child’s best interests. FN3.
“ROUTINE MATTERS” CONCERNING THE CHILD
Unlike “important matters,” “routine matters,” may be decided individually. MCL 722.26a(4) of the Michigan Child Custody Act states that:
“During the time a child resides with a parent, that parent shall decide all routine matters concerning the child.”
MCL 722.27a(10) of the Michigan Child Custody Act similarly states that:
“During the time a child is with a parent to whom parenting time has been awarded, that parent shall decide all routine matters concerning the child.”
It is this author’s opinion and experience that, absent otherwise agreed-upon restrictions in a custody and parenting time order, the above-listed statutory provisions allow a parent the general freedom to act how he/she sees fit during his/her parenting time.
Thus, if the other parent is interrogating you about the way you handle routine matters related to the children, you should feel comfortable politely telling him/her to back off. It is YOUR parenting time. YOUR rules apply. If the court determined you were fit to have parenting time, the court also determined that you were fit to make routine decisions regarding the children without your ex-wife’s or ex-husband’s unwanted input.
However, just because you have the authority to make routine decisions, does not mean you should engage in careless decision-making regarding your child. Even for routine decisions, you should always be keeping your child’s best interests in mind and keep the other parent reasonably informed. FN4. Although you are generally free to do what you want during your parenting time, if it can be shown that your decision-making is harmful, you may be providing the other parent with ammo to build a case to modify that parenting time (or even custody).
MANAGING PARENTING TIME THROUGH COURT ORDER
As mentioned, absent otherwise agreed-upon restrictions in a custody and parenting time order, parents are free to handle routine matters regarding their child during his/her respective parenting time. However, if there are concerns that certain matters of routine parenting time need to be regulated, the parents may agree to include very detailed parenting time provisions in their court order or judgment. Additionally, a parent may seek for entry of such provisions pursuant to MCL 722.27a(8) which states that:
(8) A parenting time order may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time by a parent, including 1 or more of the following:
(a) Division of the responsibility to transport the child.
(b) Division of the cost of transporting the child.
(c) Restrictions on the presence of third persons during parenting time.
(d) Requirements that the child be ready for parenting time at a specific time.
(e) Requirements that the parent arrive for parenting time and return the child from parenting time at specific times.
(f) Requirements that parenting time occur in the presence of a third person or agency.
(g) Requirements that a party post a bond to assure compliance with a parenting time order.
(h) Requirements of reasonable notice when parenting time will not occur.
(i) Any other reasonable condition determined to be appropriate in the particular case.
To summarize, it appears that the law intentionally leaves room for discretion and common sense by declining to include bright-line rules when it comes to identifying apportionment of decision-making authority during a parent’s parenting time. The general rule is that “important decisions” shall be made jointly and “routine decisions” shall be made individually. If a parent believes that the other parent is engaging or may engage in harmful routine decision-making regarding the child, that parent may seek an agreement from the other parent to add more specific terms regarding routine parenting time, may seek more specific regulation of routine matters from the court, or may seek to modify parenting time or custody. Modification of parenting time is addressed in Part 3 of this series.
FN1 – E.g., see Lombardo v. Lombardo, 202 Mich App at 157-158, (1993); Shulick v Richards, 273 Mich App 320; 729 NW2d 533 (2006).
FN2 – Bowers v Vandermeulen-Bowers, 278 Mich App 287; 750 NW2d 597 (2008).
FN3 – Lombardo (decision regarding child’s educational program); Parent v Parent, 282 Mich App 152, 762 NW2d 553 (2009) (motion to enroll child in public school); Bowers v Vandermeulen-Bowers, 278 Mich App 287, 750 NW2d 597 (2008) (decision to change school districts).
E.g., see MCL 722.23 for guidance.
Please note that this article is intended to be academic in nature. Its purpose is to serve as a memorialization of research as well as invoke community discussion. This article shall not constitute legal advice. It does not create an attorney-client relationship. Legal advice should be given on a case-by-case basis, as its accuracy is relative to the timing and particular facts of the given matter. It is important to always consult an attorney regarding legal matters. ******************************************************************************
I am Dennis M. Germain, a Michigan family law attorney who promotes fair resolutions to domestic relations matters. I primarily practice in Macomb County, Wayne County, and Oakland County, Michigan. My office is in Shelby Township, Michigan. My office and contact information is listed as follows:
Best Interest Law
48639 Hayes Road, Suite A
Shelby Township, MI 48315
Ph: (586) 219-6454
Fax: (586) 439-0404