I am frequently asked whether a parent with joint legal custody has the right to request psychological treatment for a minor child without the consent of the other parent. Unfortunately, the Michigan Child Custody Act and applicable case law provide very little guidance on this issue.
The Child Custody Act ¹ provides somewhat contradictory language regarding the authority of each parent with joint legal custody. The Act states that “[D]uring the time a child resides with a parent, that parent shall decide all routine matters concerning the child.” ² However, in the same provision of the Act, joint custody is defined as cases where “the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.” ³
Disputes frequently arise over these types of definitions. Many parents argue that therapy is a routine matter which they may decide to employ when the children are in their care. Others would argue that therapy is a major decision in which the parties should consult and agree on a course of action and the therapist.
So how do the parents decide? If one parent has sole physical custody do they have the right to make this decision?
Surprisingly, considering the frequency that this issue seems to arise, there are no Michigan cases that specifically deal with this issue. However, in Lombardo v. Lombardo ⁴, a case involving a dispute over which school a child attends, the Michigan Court of Appeals completed an analysis which can easily translate to the present issue.
In Lombardo, the circuit court held that absent any law on the subject, the parent who is the primary physical custodian should make the decision. The Court of Appeals reversed.
In its decision, the Court first held that by permitting the primary physical custodial parent to resolve any disputes concerning decisions regarding the welfare of the children, the Circuit court was permitting the primary physical custodial parent to violate the Child Custody Act which clearly states that parents shall share this authority.
The Court then held that child custody disputes are to be decided in the best interests of the minor children ⁵, and that the parties cannot usurp the court’s authority to make determinations in the children’s best interests ⁶. Thus, if parents who have joint legal custody are unable to reach an agreement regarding important decisions affecting the welfare of the child, the court should make the determination based on the best interest of the minor children.
Therefore, mental health professionals should use caution in treating a minor child without consent from both parents when the parents share joint legal custody, even when one parent has sole physical custody. The other parent retains the right to file a Motion with the court and ask the Judge to cease the therapy or to request a different therapist.
¹ MCL 722.21 et al
² MCL 722.26a(4)
⁴ 202 Mich.App. 151; 507 NW2d 788 (1993)
⁵ MCL 722.25
⁶ West v. West, 241 Mich 679, 683-684; 217 NW 924 (1928); Ebel v. Brown, 70 Mich App 705, 709; 246 NW2d 379 (1976)