June 26, 2017 § 4 Comments
Jessica Timmons had a baby by Jason Taylor, and the two filed a joint pleading to establish paternity and all of the attendant relief. They agreed that Jessica would have physical custody, and that she and Jason would share joint legal custody.
They later had a falling out because Jessica wanted their child to attend a particular private school, and Jason did not agree. Their dispute would up before a chancellor, who ruled that Jessica had the right to make the call, since she was the physical custodian. Jason appealed.
In In the Matter of C.T.; Taylor v. Timmons, handed down June 6, 2017, the COA affirmed. Judge Lee wrote for a unanimous court:
¶7. Taylor argues that the chancellor erred when he found that although Timmons and Taylor shared joint legal custody, Timmons—as the custodial parent—was entitled to make decisions regarding where the child would attend school. At trial, the chancellor noted that Taylor felt strongly that the child should attend a certain private school. The chancellor also noted that Taylor was given input to voice his position, but that the ultimate decision in regard to where the child would attend school belonged to Timmons as the custodial parent. For support, Taylor cites Mississippi Code Annotated section 93-5-24(5)(e) (Rev. 2013), which states in relevant part:
“joint legal custody” means that the parents or parties share the decision-making rights, the 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.
¶8. Taylor is correct that joint legal custody imparts shared decision-making rights relating to the child’s education. However, Taylor fails to note that section 93-5-24(5)(e) also provides that in cases of joint physical and legal custody, “unless allocated, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities and authority.” (Emphasis added). Here, the chancellor allocated to Timmons the “discretion to make a determination about where the child goes to school.”
¶9. “Mississippi statutory law and jurisprudence recognize that the chancellor may indeed allocate decision-making and duties to each parent sharing joint legal custody.” Carpenter v. Lyles, 120 So. 3d 1031, 1037 (¶22) (Miss. Ct. App. 2013) (citing Goudelock v. Goudelock, 104 So. 3d 158, 165 (¶¶29-30) (Miss. Ct. App. 2012); Purviance v. Burgess, 980 So. 2d 308, 312-13 (¶¶18-20) (Miss. Ct. App. 2007)). “In cases where decision[-]making was apportioned, courts have determined that joint legal custody, including the communication required in support of such relationship, requires no moment-to-moment input or veto power over every large and small decision on child rearing . . . .” Id. Mississippi caselaw also recognizes that “the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial [parent.]” Clements v. Young, 481 So. 2d 263, 267 (Miss. 1985); see also Ayers v. Ayers, 734 So. 2d 213, 217 (¶20) (Miss. Ct. App. 1999).
¶10. Here, the chancellor was well within his discretion to allocate this decision-making to one parent. Further, our caselaw favors the custodial parent having the discretion for such a decision. Accordingly, we do not find that the chancellor abused his discretion in allocating to Timmons the decision-making authority in regard to where the child attends school. Therefore, this issue is without merit.
No quarrel with that from me.
BUT … what to do when the parties share both legal and physical custody? In this district we require that one parent or the other have final decision-making authority. You can read a post about it here, if you care to.
When you are counselling your client about custody issues, it’s a good idea to acquaint her or him with the concept that, although all is hunky-dory between them today, things can change, and what seems so easy and agreeable now may be infested with considerable volatility and hostility later. It’s better to make the lines of authority clear now, while negotiations are under way, than to have to fight through months and even years of litigation and attorney’s fees later. No, it’s not a simple issue to negotiate through, but it’s well worth the trouble addressing it up front. If you take the easy way out and sell your client on a joint-legal and -physical arrangement that later winds up biting him or her, it’s going to leave a bitter taste in that client’s mouth.
January 6, 2011 § 3 Comments
MCA § 93-5-24 provides that the joint legal custodians shall “share the decison-making rights, the responsibilities and the authority relating to the health, education and welfare of a child,” and “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 each other in the exercise of the decision-making rights, responsibilities and authority.”
The problem is that the statute does not delineate exactly how final decisions will be made after the conferring is done. Common sense tells us that there can not be a committee of two. What if, for instance, the father demands that the child attend military school in Chattanooga, but the mother is just as adamant that the child attend Lamar in Meridian? Or how about if one parent believes that the child should have botox injections for cosmetic reasons and the other is opposed? Or one parent takes the position that the child should take ADHD medication, and the other is opposed to medication? Or one wants the child to have the usual childhood immunizations and the other does not out of fear of autism. The statute does not inform us how those ties or any others, some involving important decisions about the children, will be broken.
In this district, both chancellors take the position that joint legal custody is not in the best interest of the child and will not be approved unless there is some form of a tie-breaker provision.
Some lawyers try to skirt the problem by providing in a PSA that the parent with physical custody at the time will have final decision-making authority. This approach does not work, however, because the effect of life-affecting decisions like those enumerated above carry over into the other parent’s custodial time in shared physical custody arrangements.
Most PSA’s address the issue by providing that one parent or the other will have final decision-making, or tie-breaking, authority. That still means that both parents must confer, consult and participate in the decision-making process as required by the statute. Although the physical custodian is the most logical tie-breaker, I had a case once where the mother had sole physical custody and the parents shared joint legal custody of a paraplegic child. They agreed that the father would have final decision-making authority because he would continue to be responsible to transport the child to and from school, to and from all of his activities and family and church events, and to and from Birmingham for numerous and frequent medical visits.
It is okay to allocate responsibility between the parents, as, for instance, where the father is going to pay for private school, and the parties agree that he will have final decision-making authority as to the child’s education, with the mother to make final decisons as to the health and welfare. In such a case, it would be wise to define exactly what the scope of authority would be as to education, since the three realms of decison-making overlap somewhat. For instance: “Father shall have the final decision-making authority as to which school the child will attend in Lauderdale County so long as both parties reside therein; all other decisions will be finally decided by the mother.”
In cases where one parent is the sole physical custodian, the case of Clements v Young, 481 So.2d 263, 266 (Miss. 1985), offers a little help and guidance. In that case, the Mississippi Supreme Court stated:
“Our law necessarily provides that the award of custody to a parent incident to a separation or divorce vests in the custodial parent the right to make, and responsibility for making, day to day decisions regarding the care and welfare of the children. Except as otherwise agreed by the parties in writing, the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial spouse though not spelled out in detail in a separation agreement or custody decree.”
Clements does not address what happens where the parties “otherwise agree in writing,” as where they agree to joint legal custody with one to have sole custody. Have they “otherwise agreed” that the sole physical custodian will no longer have final decision authority, or is it presumed that the physical custodian will have it? Clements involved other issues and so is distinguishable on its facts. In my opinion, the best practice where one parent is the physical custodian and they share joint legal custody is simply to name the final decision-maker in the PSA.
An important reminder: I posted before about the danger of relying on the term “primary physical custody.” Designation of one parent as “primary” physical or legal custodian has no legal meaning whatsoever, and will not impart decision-making authority.