ONE ISSUE THE MONTMORENCY DIVORCE, CHILD CUSTODY COURT LOOKS AT IS Ability of Parties to Co-Parent
Birchfield v Birchfield, 2004 Mich App LEXIS 2982 (Docket No. 252344, November 2004). Plaintiff father appealed the trial court’s award of joint physical and legal custody of the minor child. Both parties had sought sole custody, and on appeal, the father contended that the parties could not sufficiently agree on matters pertaining to rearing the child to justify an award of joint custody.
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The Court of Appeals stated “When deciding whether to award joint custody, a trial court is required to consider whether it is in the best interest of the child, and whether ‘the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child”.[citing numerous cases for the proposition that sole custody must be awarded where the parents cannot agree on the fundamental child rearing issues affecting the child’s welfare. However, the Birchfield Court also made a point of the fact that “cooperation is only one factor for the court to consider in its decision to grant or deny joint custody.” Finding that the trial court had made insufficient fact findings on the record under the best interest evaluation, it remanded for further proceedings.
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Boehnlein v Boehnlein, 2001 Mich App LEXIS 2155 (Docket No. 231000, July 2001). In this case, the parties were parents of an autistic child. The judgment of divorce awarded Plaintiff mother sole legal custody due to the high level of hostility and animosity between the parties. Over the course of several years, Defendant father filed several motions to modify custody based on his disagreement and dissatisfaction with mother’s choices for education and treatment for the child’s autism, and further claiming that lack of communication with his ex-wife was “stressing” his relationship with the child. “We are hard pressed to find that defendant’s allegations of a breakdown in communications with plaintiff constitute a change of circumstances. On the contrary, the record is replete with evidence that plaintiff and defendant have not had any meaningful communication since shortly after the divorce proceedings began, and cannot even meet without the presence of third parties. We also disagree with defendant’s argument that his disagreement with plaintiff’s current treatment for the minor child’s autism constitutes a change of circumstances or proper cause…Defendant cannot sustain his burden of demonstrating a change in circumstances simply by disagreeing with plaintiff’s current treatment of the minor child’s autism.”
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Thursday, April 21, 2011
Sunday, September 28, 2008
Montmorency County
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