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Documenting Your Ex-Spouse’s Bad Acts

It’s tempting to “document” all of your contact with your ex-spouse, especially if there are minor children involved. You never know when you’ll be back in court or when the court will decide to hold an evidentiary hearing. As you probably already know, you won’t get anywhere in court admitting that you “can’t recall” -- or “that’s what I think happened” – or it was “something like that.” In today’s world, emails, texts, pictures, and notes that are taken concurrently carry the day.

There is a web site “out there” that gives separated or divorced parents a platform for communication and calendaring events involving the children. That site is “ourfamilywizard.com.” Each parent has to pay an annual subscription fee (which is approximately $100 each), and each parent then gets a password for his/her account. There are times when the judge or the Friend of the Court will ask you for your password and then look on-line at the nature of parent communication.

Documenting everything, however, can actually hurt you. In Daily v Kloenhamer, 291 Mich App 660 (2011), parents were fighting about custody and parenting time. In that case, the Court of Appeals noted that the court can decide both parenting time (or physical custody) and decision-making (or legal custody).

In Kloenhamer, the parties had child born in 1998. While the parents were getting divorced, they stipulated to joint legal custody and to parenting time.

After the divorce, most of the parents’ arguments involved parenting time—but the disputes grew to include decision-making. They fought, for example, about education and religion. They fought about whether their child had asthma and the child’s medical treatment.

In the end, the father filed a motion for primary physical custody of the child. Fortunately, they reached an agreement in 2009 about the asthma issue and about parenting time.

The fights, however, continued. Eventually, a doctor at the U of M’s C.S. Mott Children's Hospital concluded that the child did not have asthma. After that, the parties disagreed about who would be the child’s doctor and whether to discontinue the asthma medication. The fights escalated to the point that in December 2009, the father filed a motion with the court to have a Mott physician supervise the child's respiratory condition. The mother wanted the court to permit the child’s allergist to decide the child’s treatment.

In March 2010, the parties reached an agreement again. Their agreement this time was that neither of them would seek respiratory treatment or testing for the child without the express written agreement of the other party.

Two weeks later, the mother filed a motion because the parties could not agree as to whether the child should get an allergy skin test. The father filed a motion for sole legal custody. He alleged a change in circumstances and that the parties were unable to agree on the child's education, including which school the child should attend and which electives he should be taking.

In response, the mother claimed that the father refused to engage in good-faith discussions concerning medical care. She claimed that the parties agreed on education; however, she was going to file a motion to change the parenting plan so that the child could attend a private school in the Detroit area where she now lived. In fact, the mother did file her motion and claimed that the child was not sufficiently challenged by the DeWitt schools where he was enrolled. She claimed that DeWitt offered no advanced or gifted programs.

In August 2010, after two days of hearing, the judge ruled. The court found that there was proper cause or a change in circumstances and that the child had an established custodial environment with both parents. Then, the court reviewed the best interest factors and awarded sole legal custody to the father and shared physical custody. The mother appealed.

The Court of Appeals affirmed the decision. In its opinion, the Court discussed the basis for awarding sole legal custody to the father even though the parties were going to share physical custody:

The circuit court also considered the parties' ability to cooperate and generally agree on important decisions affecting the child's welfare. See MCL 722.26a(1)(b). The court correctly determined that the parties had placed a priority on their efforts to document their actions and their disagreements, while the child's medical and educational care had been relegated to an apparently secondary concern. The court concluded that the parties “just can't—they can't operate in an effective manner for their [child].” The record indicates that the parties' acrimony affected their ability to agree on important matters, particularly with regard to the child's medical treatment.

Emphasis supplied. The court criticized both parties for giving documentation “priority.” The father, however, had a greater capacity to be cordial during disputes:

The circuit court correctly recognized that this factor [factor c, which goes to the capacity to provide necessaries and medical care] is the crux of most of the discord between the parties.

Although the record indicates that plaintiff's persistence has had some positive effect on the child's medical treatment, the record also demonstrates that plaintiff second-guesses defendant's efforts and does not trust defendant to make medical decisions.

The record supports the court's determination that “[t]here isn't a productive decision-making unit for the medical decisions for [the child] at any level....” Further, the record supports the court's determination that while defendant acquiesced to plaintiff's demands and was open to plaintiff's views, plaintiff did not reciprocate defendant's collegiality. In sum, the trial court's decision regarding factor (c) was within the weight of the evidence.

The “take-away” from this case is that a court will consider the “tone” of discussions about issues related to decision-making. Cordiality toward the other parent and respect will be given weight by the court. Further, the case does not stand for the proposition that one should not “document” facts for the court; however, when a court believes that documentation become a center-piece (and sees a parent arrive for a hearing with a dolly full of Banker Boxes and three-ring notebooks and a projection with power-points), the court may conclude that the “evidence” has taken priority over the child’s best interest.

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