The Joint Legal Custody Mirage

October 18, 2016 § Leave a comment

One of the most effective ways to help ease your client into an agreement package that includes ceding physical custody to the other party is to sell the concept of joint legal custody.

What’s not to like? Joint legal custody, as defined in MCA 93-5-24(5)(e), requires that the parents or parties …

” … share the decision-making rights, responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.”

That sounds pretty straightforward. It sounds like when the parties share joint legal custody, there will be a process of shared decision-making and authority.

That’s the concept that brought Edwin Clyde Neely to the COA. A Special Chancellor had found him in contempt of a divorce judgment for not reimbursing his ex-wife, Lisa, for medical and college expenses incurred for the children. Edwin had defended on the basis that he had not been consulted on certain expenses, including a car, a laptop, and an off-campus apartment, despite the fact that the parties had joint legal custody. The chancellor swept past that argument, and Edwin appealed.

In the case of Neely v. Neely, decided October 11, 2016, the COA affirmed. Judge Greenlee wrote for a near-unanimous court, with the now-customary one judge “concurs in part and in the result without separate written opinion,” or the like. Here is what Judge Greenlee said on the point:

¶12. Edwin argues that Lisa’s refusal to involve him in the decision-making process on major expenses violates an implicit duty of sharing joint legal custody. In Laird, this Court affirmed the chancellor’s refusal to order the noncustodial parent to reimburse the custodial parent for various expenses incurred on behalf of the child, including clothing, school supplies, and a bicycle. Laird, 788 So. 2d at 851 (¶14). In that case, the original decree required consultation and mutual agreement between the parties prior to incurring expenses for education and similarly important matters. Id. The parties did not communicate concerning the expenses, and many of the expenses were duplicated between the two households. Id.

¶13. Here, the Agreement between Lisa and Edwin does not explicitly require consultation and mutual agreement between the parties prior to incurring the expenses. With the exception of reasonable college expenses, each expense is divided equally between the two parties. The chancellor heard testimony concerning whether each expense was reasonable, and held in Edwin’s favor that he did not have to pay the entirety of the expense of his freshman daughter renting an apartment off-campus, even though the original decree provided that Edwin would be solely responsible for all reasonable college expenses. We cannot find that the chancellor abused his discretion in finding Edwin in contempt and ordering him to reimburse the qualified expenses of $14,073.92. [Emphasis added]

That first sentence of ¶13 is somewhat of a head-scratcher. MCA 93-5-24(5)(e) specifically “obligates” the parties to confer (or consult, if you prefer), in the very kind of decisions involved in this case, and to share as well in the decision-making authority. There would not need to be a specific provision to that effect in the PSA or judgment because the statute specifically imports that duty into it via its definition of the term “joint legal custody.” I do agree that the statute does not require “mutual agreement” before incurring the expense, and there was no such requirement between the parties in this case. There was, however, a statutory duty to confer in the decision-making leading up to the expenses, and a statutory duty to share in the decision-making authority.

So, in light of a decision like this, how do you advise your clients when drafting an agreement or when confronted with a client complaining that he or she was left out of the decision-making loop? I guess the best tactic on the front end is to spell out in specific language what the duties of each parent shall be, and do not rely on the language of the statute. Professor Bell points out at § 12.04[1][a] of Bell on Mississippi Family Law, 2d Ed., that the MSSC ” … characterized joint legal custody as approximating the authority of an intact nuclear family” (citing Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss. 1986)). That’s all well and good, but you’d best spell out just what that entails.

As for that chagrined client who was left out of the conferring and decision-making process, I don’t think the cases or the statutes point a clear direction. In many cases that come to trial, the mere fact that there was no conferring does not overcome the fact that the expenses were clearly necessary for the benefit of the child. I think you have to take it on a case-by-case basis, with the necessity for and the reasonableness of the expenses, with the parties’ relative financial situations, being the main considerations.

In this district, we will approve joint-legal-custody arrangements only where there is a tie-breaker provision. You can read about that at this link.

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