On September 15, 2022 the Michigan Court of Appeals issued its opinion in the case of Whitelock vs. Fowler. In this case, the father appeals the trial court’s motion granting mother’s request to change legal custody pursuant to MCL 722.26a.
Legal custody refers to the “decision-making authority as to the important decisions affecting the welfare of the child.” MCL 722.26a(7)(b). For joint legal custody to work, 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 custody of the children. The establishment of the right to custody in one parent does not constitute a determination of the unfitness of the noncustodial parent but is rather the result of the court’s considered evaluation of several diverse factors relevant to the best interests of the children.Fisher v Fisher, 118 Mich App 227, 232- 233; 324 NW2d 582 (1982) (citations omitted)
In the Whitelock vs. Flower case, the parties were previously awarded joint legal custody and the parties are parents of a child who suffers from a number of serious and potentially life threatening conditions, which included spending time on a ventilator. According to the child’s mother, doctors recommended experimental treatments which required father’s consent. Mother phoned father to obtain his agreement on consent forms after he initially agreed to treatment. However, father refused to go to the hospital immediately as he didn’t want to drive to Grand Rapids until the following day. Ultimately, mother was able to procure the treatment without the consent of father. Mother then requested an order changing legal custody.
Changing legal custody.
At trial, father testified that he basically left all the medical decisions to mother, and that she kept him reasonably informed of the child’s care. After multiple hearings, the trial court granted mother’s request to change legal custody noting that there was an established custodial environment with mother and clear an convincing evidence sufficient to support an order changing legal custody. However, the Court of Appeals reversed.
There is a three step process to change legal custody. First, a showing of proper cause or change of circumstances since the entry of the last order. Second, the established custodial environment determines the burden of proof and; Third a best interest of the child analysis.
At trial, mother argued that the child’s medical condition requires concerted action and attention, and that father unwilling or unable to provide that jointly with mother. She also argued that joint legal custody is an impediment to obtaining emergency care. However, mother cited no authority for the proposition that one parent’s reliance on the other parent’s capability and knowledge of an important issue affecting their child’s welfare establishes a proper cause or change in circumstances that warrants revising legal custody.
The Court noting that prior testimony that the parties’ method of cooperating and reaching agreement involved mother making decisions and informing father about them, who acquiesced to her decisions supported the notion that nothing has changed. Mother’s argument that there had been numerous situations that might have had a very serious and detrimental impact on the child’s health because of joint legal custody was simply speculation and unsupported by evidence.
Therefore, the trial court’s decision was reversed for failing to comply with the first requirement to change custody, simply proper cause or a change of circumstances since the entry of the last order.
The key learning in this case is the notion that preparation is key to changing legal custody. Had mother properly prepared, she could have provided evidence to support her allegations rather than rely on speculation and conjecture.
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