Joint Legal Custody 161

Traditionally, there are two types of custody in family law matters – legal custody and physical custody (also known as parenting time in some jurisdictions).  Both types of custody can be established as sole or joint custody. While much attention is given to determination of physical custody (where the child will reside, when and with whom), legal custody is vitally important and has the potential to cause future problems in high conflict cases.

Sharing Major Decisions

Legal custody gives you the right to make the major decisions that will affect your child’s life.  Joint legal custody is a situation in which both parents share responsibility for those major decisions. These might include decisions about education, health and dental care, emergency care, religious practices, extracurricular activities, and more.

Family law courts determine custody (both physical and legal) based upon the best interests of the child. Most courts will presume that both parents are willing and capable of working together to make major decisions for their child’s health, education and welfare. If one party or the other would rather have sole legal custody (sole decision-making authority), the onus will be on that party to demonstrate to the court the reasons that sole legal custody would be in the best interests of the child.

Parents with joint legal custody do not necessarily need to be friendly but should be able to set aside their differences to make good decisions for their child. If parents have an extraordinarily high level of conflict or refuse to communicate with one another, the court may award sole legal custody to one parent (but may still require consultation with the other parent before making a major decision). If abuse, neglect, or violence involving the child or spouse has occurred, courts are unlikely to award joint legal custody.

Day-to-Day Decisions

Even in situations of joint legal custody, day-to-day decisions will be made by the parent with whom the children are at the time the decision is to be made. For example, a father with weekend visitation can decide what the children will eat and wear during that weekend. Both parents should be able to make emergency medical decisions for the child without consulting with the other parent if time and medical needs require immediate decisions. (The other parent should be notified of the medical situation as soon as practical.)

Inability to Agree

If one parent excludes the other from the decision-making process in a joint legal custody arrangement, the other parent can file a motion to enforce, a motion for contempt and/or a motion to modify custody based upon the refusal to abide by the custody order.

In the event that parents with joint legal custody cannot agree on a major decision involving their child’s health, education or welfare, they can seek the assistance of a mediator – a neutral third-party who will help the parties reach an appropriate compromise or decision. In some jurisdictions, the parties may ask the judge to enter his or her order regarding the disputed issue after hearing evidence and argument. This can be extremely time-consuming and expensive however. In order to avoid those costs, the court may appoint a special master or arbitrator to hear the matter. Other jurisdictions might appoint a case manager to handle or decided day-to-day disagreements in high conflict cases.

Specificity in Parenting Agreement

Court orders of joint legal custody are generally fairly broadly written, referencing the vague notion of the child’s “health, education and welfare” or some similar language. Parties can use parenting or settlement agreements to attain more specificity in the responsibilities attendant to joint legal custody.

Some of the issues which might be covered are the requirement to notify the other parent of non-emergency medical care; of the identity of the child’s teachers, day care providers, and health care providers;  and of any school, church or extracurricular activities to which parents are invited.

Parents are urged to approach the major decisions affecting their child’s life with the child’s best interests in mind – and not whether mom or dad “wins” a disagreement. The most successful joint legal custody situations do not require overly friendly exes – just mature parents who put their child’s needs first.


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