COMMENTARY: What legal custody means for your child's education

By Marie E. Matyjaszek

With the new school year already underway, here is a helpful reminder about what legal custody means in relation to your child’s education.

There are two types of legal custody: sole legal custody and joint legal custody. The same applies for physical custody; however, more courts are choosing not to award or recognize physical custody in orders, as it does not control when a parent sees their child and is often considered an antiquated term.

Interestingly, there is not an actual legal definition for the term “sole custody,” but it is used to indicate that only one parent has the decision-making authority for the child (legal custody), or when the child resides primarily with and is mostly cared for by one parent (physical custody).

Joint custody is defined in MCL 722.26a(7)(a) & (b): “... an order of the court in which 1 or both of the following is specified: (a) That the child shall reside alternately for specific periods with each of the parents. (b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.” The court must consider awarding joint custody if either parent requests it, and among other things, it looks at whether the parents can cooperate and agree on decisions for their child.

Legal custody is what comes into play when determining your child’s education. If the parties have joint legal custody, they must agree on where the child attends school, and if they do not agree, they can file a motion with the court for a determination. As you’d imagine, the courts see a flurry of these motions as soon as summer rolls around, as the parties want to sort it out prior to the new school year.

If one parent has sole legal custody, then the school decision rests only with that parent. Generally, the other parent has a right to know where the child goes to school, and if the sole custodial parent wants to involve the other parent in the decision, there usually isn’t anything stopping them. However, if they don’t agree on the school, the parent with sole legal custody has the final say.

Sole legal custody does not prohibit the non-custodial parent from participating in school activities, although other court orders may, depending on the nature of the parties’ relationship (i.e., domestic violence, personal protection orders). MCL 722.30 specifically provides a noncustodial parent with access to the child’s records, including medical, dental, school and daycare, stating “Notwithstanding any other provision of law, a parent shall not be denied access to records or information concerning his or her child because the parent is not the child’s custodial parent, unless the parent is prohibited from having access to the records or information by a protective order.”

If you and your child’s other parent do not agree on school choice, check your court orders for the legal custody award and determine whether you need to take legal action.  As they say, knowledge is power.
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Marie E. Matyjaszek is an attorney referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own.  She can be reached by e-mailing her at matyjasz@hotmail.com.