My eight year old son has gone to his fathers for winter break. I tried calling my son to see how things were going and if he was safe (any mothers concern.) His dad wouldn’t answer the phone nor would his girlfriend. This went on from five at night through to the next day. I was worried that something had happened; I just wanted to know that he was okay. Well long story short he called me crying that night wanting to come home and his father wouldn’t let him. Where do I stand?? What can I do?? I just want my baby home.
The FOC told me that I can’t get him because his father and I agreed upon a time for him to stay for the break. I have joint legal and physical custody over my child. His father only gets him at his convenience.
To answer this question, I have borrowed some standard language that I use in my custody judgments and divorce judgments, that defines these concepts:
Under the provisions of the Child Custody Act, MCLA 722.24, the minor children of the parties have an inherent right to the affection and love of both parents and to a relationship with each parent. By their signatures affixed to this judgment of divorce, the parties agree that neither will take any action that might estrange or alienate the minor children from the other parent or tend to discredit, cause disre¬spect to, or diminish the quality of the relationship with the other parent, as more fully set forth below.
a. Legal Custody.
The parents are awarded joint legal custody of their minor children. Pursuant to the Child Custody Act, MCLA 722.26a(7), joint legal custody means the minor children have a legal residence with each party and further, that the parties shall have equal responsibility and decision-making authority with respect to the children’s health care, education, religious training, and overall welfare.
In agreeing to joint legal custody, the parties intend as follows in this judgment of divorce:
i. Each party will use their best efforts to foster, encourage, and support the relationship between the children and the other parent. To this end, it is the intent of the parties hereto that neither parent will portray the other in a negative or false light, or attempt to discredit or damage the love that the minor children and the parents have for each other.
ii. Each party is entitled to complete access to the children’s medical and school records.
iii. Each party will advise the other promptly of any serious illness, injury, emer¬gency, or any other significant event that arises while the child is with that parent. The word “illness”, “injury” or “emergency”, as used herein, means a medical condition which confines the child to bed for more than 24-hours, or which requires professional medical attention on an “in-patient” or “out-patient” basis.
iv. The children’s clothing, toys, equipment and personal effects are the property of the child and not the parent. This means the children’s clothing, toys, equipment and personal effects may move back and forth with the children between the respective residences and neither party shall impede this process.
v. Each party will support the other in the enforcement of reasonable rules and regulations for the children.
vi. The parties will consult and attempt to work together on major policy decisions relating to the health, education, welfare, and the physical residence of the children.
vii. If the parties cannot agree on major policy decisions relating to the health, education, and welfare and physical residence of the children, they will, on notice to the other parent, seek the assistance of a qualified family counselor or mediator who will attempt to assist them to make such decisions.
Your post suggests that you are not yet comfortable with allowing your son to spend time with his father. Granted, Dad "going dark" on you is unsettling, especially if he does not exercise regular, extended overnight parenting time. But the law says, and most family courts would agree, that unless a father is abusive or neglectful, or alienates the boy against you, a strong and loving relationship with both parents is in his best interests.
Take these words to heart as there is nothing in your post that would give a family law lawyer pause to think there is a basis to modify your agreement. If that agreement has been memorialized in a court order, the FOC is correct; you are "stuck with it" for the time being.
Good luck, and try to let Dad exercise his time with your son without interference; every boy needs a father.
The response to this post is not intended to provide specific legal advice or to create an attorney client relationship. Nor does our response to your post constitute solicitation for legal fees.
The short answer is that legal custody requires the parties to be able to communicate with one another to reach a joint decision on matters which materially affect the life of the child or children, such as serious medical conditions. Routine decisions are to be made by the parent who the child is with at the a decision must be made.
Physical custody is really a title. It is the parent with whom the child is residing. Physical custody is thought of and determined by the overnights the child or children spend with each parent. Any physical custody order can be labeled "joint," but that does not necessarily mean equal time. Custody can be termed "primary residence" for the party with whom the child will be spending more overnights. A Judgment does not have to even use the word custody.
It is not the amount of time that is important, but rather the quality of the time spent with the child or children. Too often parents fight for a title, and that fight can lead to other problems in resolving issues.
Mr. Flynn's recitation of what is considered joint physical and legal custody is the guideline for issues of this nature.
Neil M. Colman
Mr. Colman is licensed to practice law in Michigan. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Colman strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
There is not much you can do if your parenting time Order requires him to stay for a break. If it is not in your child's best interest, you should consider filing a motion to modify the parenting time with the Court. It would definitely be in your best interest to consult with an attorney to determine your best course of action.
The issues of joint legal and joint physical custody are totally different. What you have is a parenting time dispute -- not a custody dispute.