Legal Custody 18

There are two types of custody determined in family law matters involving children – physical custody (or “parenting time”) and legal custody. Both physical custody and legal custody can be established as sole or joint.

Physical custody gets quite a bit of attention during a divorce (and, in some cases, well after the divorce is final). Parties are well-advised not to ignore the implications of legal custody, however – especially in high-conflict cases.

Making Major Decisions

Legal custody gives you the right to make the major decisions that will affect your child’s life.  These might include decisions about education, health and dental care, emergency care, religious practices, extracurricular activities, and more.

Joint legal custody (generally, the court’s presumption or preference) is a situation in which both parents share responsibility for those major decisions. In some instances, however, the court will give sole legal custody to one parent.

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), that party must demonstrate to the court the reasons that sole legal custody would be in the best interests of the child.

If the parent requesting sole legal custody can demonstrate in court that the other parent lacks appropriate judgment such that the child is in danger of being physically or emotionally hurt because of the parent’s decisions, the court may award sole legal custody. If abuse, neglect, or violence involving the child or spouse has occurred, courts are more likely to award sole legal custody to the non-abusive parent.

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 sole legal custody, day-to-day decisions may still be made by the parent with parenting time at that particular moment. For example, a father with weekend visitation can decide what the children will eat and wear during that weekend – even if he does not have legal custody.

Because a parent without legal custody should be able to make emergency medical decisions for the child without first consulting with the other parent (if time and medical needs require immediate decisions), the parent with sole legal custody should discuss granting the other parent a possible limited power-of-attorney for emergency health care with their divorce attorney. (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 regarding 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. The agreement might also reference school and religion choices, just so those previously-agreed-upon decisions are not forgotten in the heat of later argument.

As with any custody matter, an order of sole legal custody can always be modified in the future if the court finds a substantial change in circumstance which makes the original order unreasonable and not in the best interests of the child any longer.


  • Marty

    My husband and I have primary physical custody of my step son (called son from here on out) but it is a 50/50 split legal custody with my sons biological mom.

    I have been the one helping my son through school with homework and staying involved with his teachers and the problems that are arising in school. I have seen him struggling emensly and want him to try online cyber school. I took him to an orientation where they talked us through what cyber school would be like and my son was extremely excited about trying it out. Not to mention the shcolastic oportunities at the cyber school completely blow away the education they are offereing at the current public school he is attending now.

    I talked with my husband about it and he agreed with me that it could be a great opertunity for him. When we tried to talk to my sons biological mom she became very angry and said we make every decision without here and that her opinion doesn’t matter. She said she doesn’t want him doing cyber school because she wants him to have normal childhood memories and so on. We tried to explain to her about the social aspect of the cyber school but she wouldn’t have it. I honestly think it is some sort of power hunger competition for her. My husband and I are just trying to make choices for our son that we think are in his best interest. It really breaks my heart to see him be continuly robbed because of his mom not wanting us to make decisions for him. He IS at our house Sunday evening through Friday after school.

    My question is when two parents with 50/50 split legal custody and they completely disagree with each other what is to be done???

    If we sign him up for cyber school anyway we are infringing on her rights and if we don’t do anything then she is infringing on my husbands rights to make a decision for his son.

  • Concerned Parent

    First of all, you have no legal rights to your step son. You are stepping on the moms toes bigtime! Step parents who interfere with parents rights are a huge problem. Dad is the one who needs to step up to the plate if he really is interested in this online school. From what you wrote, you are the one who looked into it, then took the boy to the orientation without even consulting with both parents and then decided to talk to your husband. This is not your decision. OF course husband is going to agree with you to avoid commotion. But remember, dad and mom are the parents, not you. One thing I cannot stand is people who step in and think they are superior to the real mom or dad. If you were not married to the dad, then choices like education would always fall to the mom and dad to make, I am not sure why step parents think they have any parental rights. It is nice that you love the boy, and want to be a good role model… but did you ever stop to look at the moms side? Is she really robbing her son of anything? Are you robbing her of the right to raise her child too? When parents disagree they are suppose to go to mediation, when real parents are married to each other they disagree at times as well. Are they robbing each other? Things would be so much easier on real parents if step parents would butt out and stop trying to force their decisions.

    • kim b.

      WHOA, some step parents are FAR superior to “real” parents. My step kids mom have neglected them and comes aroung every once in a while. She does not go out of her way to make sure they are safe or even fed at times. She is not stepping on toes, but being this kids “real” mom. ugh.

  • Concerned Parent

    and one more thing, you stated that you and your husband have physical custody… you have no custody. Period! Your husband is the one with custody and with the rights, not you.

  • Dawna

    I have a 23 year old son that is into constant trouble and has ADHD and has just gotten out of prison and now is missing again from a half-way house…I am just in awe as to what to do with this kid. Should I let him go and let the system take care of him. He is not mentally stable. He is on medication. He needs to be somewhere that he can not get into trouble, but still try and make a future for himself. Constantly going to jails and prison is not getting him anywhere. He gets nervous and anxious and worried and then tends to stress out and that is when he wants to run away. Should I try and get legal guardianship over him to help make his decsision cuz now he cannot do it and the system is just throwing him around like a criminal and he needs help. What do I do first? Thanks for any help you can give me.

  • Kari

    What are the real things we need to teach our children? I am a mother, disabled physically but not to the point I can not take care of my two kids! I have always been a fighter on things I believe in and the thing I belive in is THE LOVE I GIVE AND RECIEVE FROM MY CHILDREN! I may not have all the money but I have the heart, my children feel safe and loved and I do teach them the golden rule. Treat others the way you want to be treated! And now going through a custody battle when he has all the ammo to take my daughterm from me is quite disturbing. He has a girlfriend that wants to take my place but the saddest thing is he will let her. He has exclded me from our daughter on his weeks has taken her to urgent care without me knowing, would never help us when we were stranded, never picks up the phone to discuss anything with me. And now after 4 years and me finally puttung my foot down and telling him we are going back to the court schedule, he gets mad because it would affect his finances! My girl has been wanting to dance for 3 yrs. but couldnt because the distance between our homes, she is awesome and I wanted to give that to her he didn;t and ran a background check and found out I got a DUI and now is taking me to court to have sole legal custody!!!! My kindness towards him has not prevailed, I think he hates me because I have remained so kind and sent pictures of our daughter even though it was my week. I never excluded him from her life despite the fact and evidence that he never wanted to work with me on raising our child. I am afraid I will loose my right as a mother for mistakes I made and the only thing that keeps my head up is the unbreakable bond my daughter and I have! What id more important a parent that got caught drinking and driving and that has had a marijuannna charge priot ot a medical marijuanna car or a parent that wants to turn there jid aghainst the other parent?

  • lostq

    My daughter has been living in my residence since August 2008, her father and I have shared her equally since the break up. recently she went to visit him, and he put her in school and he is now keeping her from me and I cannot contact him. I want to file for custody if he hasnt already, but since she is listed as living with me on my food stamp application. what do i do?

  • rebecca

    my ex had an affair left me and my 3 children. we have one child together and i wanted to know since we have a pending parenting plan together and we havent gone to court if i have to let him see our daughter,. he doesnt comply with the parenting plan i set scheduled days for him to come see her but he refuses to come on the days scheduled he shows up unannounced and disrupts the other children, how can i stop this until we go to court the judge hasnt ruled anything yet..please help me thank you

  • tara

    my sons father my ex bf of 2.5 years became abusive to me physically and verbally he spends his money when he was working on his hobbie more then his family when we lived together i payed all bills tv hydro internet etc he never really particicpated in his sons life in my pregnancy he focused alot on himself then his familly…so now im living back at my moms with my children as a single mom looking for work i want to seek sole custody but give visitation rights where he can see his son everyother weekend the fact im askin is hes got a criminal record no work i have my child taxes for my income and my familys help and looking for work to support me and my children i dont want any support from him i just want custody anyone know the odds me the mother would get full i dont do drugs i dont drink i go out once a week i make sure my kids are healthy and i have no criminal record please someone get back to me with there thoughts and opinion on this matter thank you:)

  • Mike

    I recently had a hearing in which the magistrate was asked too make a determination too the judge regarding custody of my two daughters. It has been over 60 days and a decision has not been made. Everytime I call the court, I am told that they are backlogged. How long after a hearing does a judge have too make a decision.

  • Jack

    Hi I have been in a relationship with a marry man for 7 years. Did not no he was married but we and a daughter together and I want to move on in my life. I what to get sole legal rights for my daughter. I was told that him and his wife can take her from me since I had a child with a married man. We live together but I’m leaving and do not want any problems.

  • Jim

    Can a parent force 100 percent and 100 percent legal on the other parent by going to court?
    Currently mother has my daughter 80 percent of the time and I have 20 percent of the time. Now mother wants me to be 100 percent physical custody and 100 per legal. It came about due to her wanting to have 20 percent visitation and our daughter who is 16 years old does not want to visit after moving in with her father. Mother lives in southern california and father lives in northern california. I suggested it be 1 percent so that leaves the open time if daughter decides she wants to see mother. My feeling is that if 20 percent time is given, and it does not happen, mother will file for motion of contempt of court on grounds she was not able to have time with daughter. I guess I feel 1 percent is easier to work with then a amount of 20 percent since at the moment daughter is set on not seeing her mother.

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  • mary

    i have a 17 year old boy who lives with his father court desided that.but my son whats to get a job and his dad will not give his birthcert. or social sec card.i had my lawyer talk to his lawyer about x said he will give it to my son but he didnt/what can i do?

  • Marty


    I don’t know what state you live in but I would suggest going to your local court house and asking there about how to obtain his birth certificate. Even if dad has one you sould be able to get another one. Hope this helps. Also this web page may be helpful.

  • Marty

    As far as the social security card you should be able to order a new one from your local social security office. Best of luck to you.

  • Big Mama

    My son has joint custody of oldest 2 children ages 6 & 5 also is the main conservatoire parent in which the children have lived with since the day they were born. And has another child age 3 that was born out of wedlock by same woman and is on birth certificate as father but there are no papers on this child as to whom has custody by the courts. But child has been with him for 3 or more months since mother brought him to my son. Recently CPS has placed all 3 children with me their grand mother as requested by my son, since he is in trouble with the law and might serve time. My question is can my son sign all his rights and custody of all 3 children over to me legally before he goes to prison?

  • Momma B

    My step daughter as been living with her father and I now for over 6 moths. My husband’s ex, per court order, has legal physical custody but let my step daughter come live with us and dropped child support. The ex lives in NC we live in SC. My step daughter has been going to school in this time and continues to live with us. My question is because my step daughter has lived with us for 6 months, making SC her home state, does this null and void the ex having physical custody of her?