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Q: Michigan liability law for joint non physical custody parent for children ( Answered,   2 Comments )
Subject: Michigan liability law for joint non physical custody parent for children
Category: Family and Home
Asked by: august-ga
List Price: $5.00
Posted: 22 Jul 2002 08:50 PDT
Expires: 21 Aug 2002 08:50 PDT
Question ID: 43755
can the parent who has legal joint custody but not physical custody be
sued if the child injures a person while driving without car
insurance?  Is the non physical parent who has legal joint custody
liable for the child breaking the law?
Subject: Re: Michigan liability law for joint non physical custody parent for children
Answered By: weisstho-ga on 22 Jul 2002 10:55 PDT
Dear August,

I am a practicing attorney in Michigan and am comfortable answering
your question.

The brief answers to your two questions are:
(1) can the parent who has legal joint custody but not physical
custody be
sued if the child injures a person while driving without car 
insurance?  YES. 
(2) Is the parent without physical custody liable for the child
breaking the law? PROBABLY NOT.

Firstly, always remember that anyone can bring a lawsuit requiring the
defendant to put on a defense and incur legal fees. For better or
worse, that is our system. The ability of a defendant to recover legal
fees from a plaintiff after an unsuccessful lawsuit is very limited,
and particularly in Michigan, very difficult indeed. Therefore, any
caution that can be exercised in avoiding potential litigation is
always a good idea.

Secondly, the law in Michigan on this topic is fairly well developed.
The Michigan Supreme Court in the case of Dortman v. Lester, 380 Mich
80; 155 NW2d 846 (Michigan Supreme Court, 1968) held that a “parent is
under a duty to exercise reasonable care so to control his minor child
as to prevent it from intentionally harming others or from so
conducting itself as to create an unreasonable risk of bodily harm to
them, if the parent knows or has reason to know that he has the
ability to control his child, and knows or should know of the
necessity and opportunity for exercising such control.”

“For harm resulting to a third person from the tortious conduct of
another, a person is liable if he controls, or has a duty to use care
to control, the conduct of another who is likely to do harm if not
controlled, and fails to exercise care in such control.”

The factual scenario would be controlling in a case such as this: did
the non-(physical) custodial parent have “control” over the “conduct”
of the child, and if he/she did, did they “fail to exercise care in
such control”?

Certainly, if there were a concern on the part of the parent without
physical custody, a letter written to the custodial parent would be
well advised. Simply write a letter expressing your concern. Make the
letter to the point, and as clear as possible. I would send a copy of
the letter to the Friend of the Court to be placed in the child’s

Lastly, the safety of the child is of paramount importance. I know
that this can be extremely difficult even where the parents are
communicating and getting along. Kids will be kids (unfortunately). In
those unfortunate cases where the parents are at odds, the situation
is so very difficult – almost unbearable at times. Perhaps in a case
like that bringing in an expert to facilitate communication would be a
good idea. The Friend of the Court may be able to help you with this
issue. It would certainly be worth a phone call to discuss this with a
case worker. Some county FOC offices are particularly adept at this,
others unfortunately are not.

Good luck with this.  I know that it can be so very difficult. I also
know that you will focus on the safety of the child.


Search Terms Used:
Lexis (parental /s liability)
Subject: Re: Michigan liability law for joint non physical custody parent for children
From: wengland-ga on 22 Jul 2002 09:12 PDT
Under current laws, anyone can be sued for an accident.  How well it
will stand up in court is another matter.  Google answers is not
allowed to give legal advice; I would suggest contacting a lawyer in
the jurisdiction of the accident.

Good luck!
Subject: Re: Michigan liability law for joint non physical custody parent for children
From: expertlaw-ga on 25 Jul 2002 21:08 PDT
Elaborating on Mr. Weiss's comments, I think it is important to
explore additional avenues of potential liability. Mr. Weiss addresses
negligent supervision - but a parent can also be vicariously liable
for the acts of a child under statute. MCL 600.2913. The statute caps
vicarious liability at a maximum of $2,500, whereas negligent
supervision (an action for the parent's own negligence in failing to
properly supervise the child) is not capped.

In order for vicarious liability to exist under MCL 600.2913, the
statute indicates that the child must be living with his parent or
parents. This suggests that the statute would apply primarily to the
custodial parent, and there is no law clarifying the issue, but it is
very likely that a court would apply this statute to a non-custodial
parent who was exercising parenting time (visitation) at the time of
the accident. If at the time of the incident the child was staying
with the custodial parent, and the non-custodial parent had no
supervision of the child at the time, it is unlikely (but still
possible) that the non-custodial parent would be liable under either
theory. BUT....

There is also the Michigan Owner's Liability statute, MCL 257.401,
which is meant to provide a source of recovery for somebody injured by
a borrowed car. If the car the child was driving at the time of the
accident was owned by the non-custodial parent, that statute may be
implicated. Additionally, the child's access to the non-custodial
parent's car might be presented as circumstantial evidence of
negligent supervision.

Also, if the non-custodial parent's automobile insurance company
provides coverage to the minor child, it may be possible to reach that
policy to cover the accident, even if the vehicle the child was
driving was uninsured. If the injuries are serious enough to justify a
lawsuit, the attorney filing the suit may name you as a defendant just
to see what your insurance company does.

If you are named in a lawsuit, you should immediately contact your
insurance company to let them know. Assuming you have automobile
insurance, your insurance company will probably defend you even if
they don't think they will ultimately be liable, and will probably
defend you in the initial stages of the case even if they don't think
that there is coverage. While ordinarily you would report an
automobile accident to your automobile insurance company, if negligent
supervision is raised and you have homeowner's insurance, you should
also notify your homeowner's insurance company of the claim.

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