When legal custody won’t work. (What is physical and legal custody?)

Physical custody if Michigan is an archaic term to describe the parent that spends the majority of parenting time with a minor child. Traditionally, the parent who is awarded the most parenting time was awarded sole physical custody. So, what happened to physical custody in Michigan?, in simple terms the phrase physical custody has gone away and simply replaced with parenting time. Legal custody describes which parent (typically both) decide major decisions such as educational, medical and religion.


Legal custody is different than physical custody which addresses time spent with each parent. Legal custody involves major decisions. Legal custody is defined in Michigan Compiled Laws, section MCL 722.26a. In the majority of Michigan cases, the parties are awarded joint legal custody. With joint legal custody, parents share decision-making with major decisions affecting the welfare of the minor child. During the time a minor child resides with a parent, that parent has the right to decide all routine matters concerning the minor child. Both parties are entitled to equal access to the educational, medical, religious, governmental, and other important records of the minor child. 

However, sometimes an award of joint legal custody does not work as highlighted in the recent Michigan Court of Appeals case of Sturos v. Sturos. In the Sturos case, the father asked the Court of Appeals to reverse an award of sole legal custody to the mother. The trial court determined that it was “an absolute impossibility to have joint legal custody. . .” The Michigan Court of Appeals providing:

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).]”

Sturos v. Sturos

So what made things so bad in the Sturos case?

The trial court based its decision on the parties’ mutual animosity, including testimony that each of them had called the police on the other, and their inability to collaborate on medical decisions to the extent that they were changing their child’s medical appointments without letting the other parent know. . . the parties’ animosity affected their ability to agree on basic child rearing issues. . .the parties’ animosity negatively impacted their child’s ability to obtain medical treatment . . . testimony outlined the vastly divergent child discipline practices of the two. In addition, defendant testified that plaintiff did not permit the children to attend church or Sunday school, which ran contrary to defendant’s belief in the importance of their religious education.

Sturos v. Sturos

While the majority of Michigan divorce and custody cases result in award of joint legal custody, in cases where circumstances are really bad, it is not improper to award one parent sole legal custody as was the circumstances with the Sturos family and the award of sole legal custody to the mother was affirmed.

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I have been exclusively practicing divorce and family law in Michigan for over two decades. The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles.  We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.

By:  Daniel Findling

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