Sole Legal Custody 25

There are two basic types of custody in family law matters – physical custody (also known as parenting time in some jurisdictions) and legal custody. Both types of custody can be established as sole or joint. Parenting time and physical custody (where the child will reside, when and with whom) tend to spark the most disputes during a divorce or paternity case but legal custody – which gives a parent the right to make major decisions which affect a child’s life – is vitally important. Legal custody issues can cause major problems in the future 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.

If parents have an extraordinarily high level of conflict or refuse to communicate with one another, they will be unable to make the mutual decisions necessitated by a joint legal custody arrangement. In those cases, the court may award sole legal custody to one parent (but may still require consultation with the other parent before making a major decision).

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.)

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.

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Discussion

  • windy

    I was awarded sole legal custody of my 2 boys, and I share physical custody with their father. We live in California. He has twice refused to take my son to the doctor, or urgent care during weekend visits. Both instances my son returned home severely ill..once it was pneumonia and the other time broncitis. Neither case did he call me or ask me to take son for medical help. He claims he has not right to take him to the doctor, and therefore would be violating court orders to do so, unless we go back to court. Is this the case? Can he in fact seek medical care while boys are in his custody and become very ill and/or hurt?

  • Robert Aldis

    Good morning Windy,

    First, this comment does not constitute legal advice nor is it a solicitation to represent any party in any jurisdiction in which the author is not licensed to practice law.

    With that said it should be known that I don’t practice law in California but if you can prove that the non-custodial parent solely allowed for your children to become ill to the point they needed emergency, non-routine, medical care, was capable of recognizing that their condition was life threatening, failed make a good faith effort to contact you, and if after failing in that effort, failed to seek emergency, non-routine, medical attention for the children, he could run afoul of the law in some states.

    As I also am not aware of the specifics of any agreements, settlements, orders, or judgments in your case will not give advice specif to your case, but I will comment on my experiences with similar cases:

    It had been my experience that bronchitis is not life threatening, and is a common medical condition associated with the common cold, asthma, reactive airway disease, and other common non-life threatening ailments. The case of pneumonia is something else.

    The questions for a custodial parent to to ask here are:
    1) Were the children sick before starting the weekend visit?
    2) If they were ill before that visit did they receive any medical care before being surrendered into the non-custodial parent’s custody?
    3) If they did receive medical care was the non-custodial parent made aware of the details of the diagnosis, treatment methodology, prognosis, and given any prescribed medication as well as the information provided by the pharmacy consultation when the Rx was filled?
    4) How long was the interval between the children being returned to the custodial parent’s physical custody and the effort to seek emergency medical care for the children?
    5) Is there any specific reason, such as the non-custodial parent being a medical doctor, nurse, nurse practitioner, medical student, etc., that would make non-custodial parent more qualified than the average person to diagnose that the children had pneumonia?

    The most important of those is in regards to the non-custodial parent’s ability to determine that the condition was life threatening. If non-custodial parent is, or was, a trained medical professional then the expectation that that the non-custodial parent would be more able to identify a life threatening condition. If the non-custodial parent is a medical lay person, and there was any delay on your part in seeking emergency medical care I would assume that a court would find that the non-custodial parent’s ability to identify the pneumonia was no better than any other medical lay person.

    Second amongst these, assuming the children were not sick before the non-custodial parent’s weekend visit began, was how long was the interval between the custodial parent, or another party acting on his or her behalf, taking the children into physical custody and dialing 911, or alternatively, driving the sick children to the emergency room? If one could document, with hospital admission records, local police/fire/EMS 911 call logs, phone bills, etc. that they, with no delay, took steps to obtain emergency medical care for the children, then, in some jurisdictions, they might have grounds for seeking supervised visitation in family court or criminal charges for child abuse or negligent endangerment. If there was any delay on on the custodial parent’s part, which, I am assuming, would be due to a failure on their part to diagnose a case of pneumonia, as opposed to being a case of negligent endangerment, the assumption would be that an individual without specific medical training would not be able to recognize that the children had a life threatening case of pneumonia.

    As I write this I assume you are asking because you are looking to seek some sanctions against him for not seeking medical care for your children. If I am correct in my assumption then you may wish to know that unless the children were hospitalized the likelihood of successfully seeking sanctions against him is quite unlikely, as the case of pneumonia would not have been classified as life threatening. In the event they were hospitalized if there was any delay on your part in seeking emergency, non-routine, medical care, the odds are not good for you to be successfully move to have a family court sanction him, as, I am assuming he had no special training to diagnose a case of pneumonia, his ability to identify a case of life threatening pneumonia was not significantly better or worse than your own, or that of any other non-medical lay person, which is the standard he would be judged by. This also assumes there have been no past findings of abuse on the part of the non-custodial parent, and, as I have noted before, I am neither licensed to practice law in your state, nor do I have no knowledge of the specifics of your case, this should not be taken as legal advice.

    As for the general issue of seeking non-emergency medical care for a child who is in the physical custody of a parent with no legal custody rights, the non-custodial parent would likely be in violation of the order. In the case of seeking emergency medical treatment if a continuing good faith effort was made on the non-custodial parent’s part to contact the custodial parent, he would not be likely to find himself in trouble for that in any family court I have ever experienced working with. Again I will remind you I do not know the specifics of any orders in your case, nor do I practice law in California.

    I do believe that the portion of this website, which currently reads “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” is offering good advice for any parent involved in a family law case where one parent has no legal custody, in order to provide for the most opportunities for children to find medical care when it is needed.

    Once again I will remind you that this comment does not constitute legal advice nor is it a solicitation to represent any party in any jurisdiction in which the author is not licensed to practice law.

  • eric

    i live in NH i have primary care of my 15 month old daughter and shared custody with her mother as well as joint decision making. i have my daughter Mon-Fri and she has her weekends, during the week while i am at work my daughter goes to home day care who the provider happens to be my aunt. my ex does not like my aunt and is trying to find me with contempt of the parenting plan by saying it was a major decision to send my daughter to her day care. so basically is day care a major decision if its during my parenting time?

  • Scott

    I live in SC and my son lives in FL with his mother. We are between cases. His mother has sole custody. I recently found out through mutual friends that my son was being treated and thought to have a brain tumor/mass; fortunately it is benign! I have been struggling to make contact and to check on him, speak to him, anything that I can to communicate to no avail. Can she legally withhold info. regarding the health of our son to this magnitude without informing me of the situation?

  • Tally

    My mom has complete and fulllll custody of me, but she kicked me out. Would their be any way that I could live with Aunt instead of my dad because he technically doesn’t have any custody over me? Or would I need permission from my mom? Also, could she get in trouble for not letting me stay at her house?

  • Stacey L Smith

    1999 I was awarded sole legal and physical custody of then 7mos old son. Judge required non custodial to accomplish 24 mediated visits to then continue with Oregon parental times. Non- custodial only finished 7 visits. He has had a cyclical relationship with his son for 12 years. The minor had wanted to try and see if the noncustodial had changed and would not be physically or mentally abusive towards him. He was only getting verbal abuse that was aimed at his mother. Minors behavior deteriorated and became defiant at home and school getting suspended. The non custodial parent had forgot to pick up the child and after that visit minor son explained to mother he was starting to feel angry with her and that noncustodial was telling lies to child and dimishing minor childs love for mother. Mother stepped in and discontinued contact as it was not in the best interest in the child. Now being imputed with”status quo” papers and minor son do not want to see biological. From what I thought those visits were in good faith because parenting time has been ignored and no parenting class was accomplished. Now what? What can mother do to protect son?

  • Mica

    There is no custody orders of any kind between me and my ex-girlfriend. Our son (age 7) was born in Wyoming but lives with his mother in Colorado. It was agreed between us for me to keep our son in Wyoming for the rest of the school year due to the fact he is in trouble and will completly fail the second grade…. the question is since there is absolutly no custody order, no court process at all do I have to return my son to his mother in Colorado after my holiday visit over Thanksgiving?

  • susanne jernigan

    Hi
    My son has 2 daughters age 2 and 3.
    He does pay child support. The mother of the children told him he can not see the kids because he is unstable with his job and she does not like him having a girlfriend she does not know. On the other hand she had different boyfriends through out last year and is currently living with someone. The kids were always around her boyfriends without the father’s knowledge.
    I filled visitation with the kids last October and went through a mediator to set up weekly visits. She did not want the father to have any part of it and told him he has to file for his own visitation.
    So on Christmas day called her and told her he would be at the house to open presents for about 2 hours. She was not against this. The same evening she called me up and complaint the kids are crying about missing their dad. I reminded her that I had verbal consent from her and it is normal for kids to miss the parent regardless if they see him one time a month or every week. She was highly upset and told me he can’t see them any more.

    Now the question is can she forbid him to see his kids. We have a mediation appointment coming up soon. She is filing for custody. What is the best way to resolve this? Can my son make me the spokes person in his behalf?

    We would like to set up visitation with the father through me the grandmother. So if something comes up i.e. work the plans don’t have to be changed. I would pick and drop them of and he would not have to encounter the mom to avoid any confrontation.

    Please give me advise as soon as possible our appointment is on Jan 17.2012

    Thank you

  • Jennifer

    My question is this:
    My son and daughter n law are getting divorced. There are two children involved.

    She left my son and the two boys, 5 and 10, 6 months ago and moved in with another man.

    The 5 year old is my sons bio child. The 10 year old child has been raised by my son since one year of age. He calls him dad but also knows he is not his “real dad”. He has never met the other one and the bio dad has never seen this child and is also not on his birth certificate.

    My daughter n law has agreed to give my son complete and full custody of both boys at time of the divorce. My son has been letting her take both boys on the weekends and she returns them to my son during the school week. They live 2 hrs apart.

    So, I guess my question is — Is it possible for my son to adopt his step child during the divorce and have his legal name changed to reflect the rest of the family name? Also — this is not to terminate the mother’s rights. It’s to protect the 10 year old since he is going to be living with my son. Will a judge allow an adoption, name change and a divorce to occur at the same time with the bio parents total consent?

    Thanks, Jennifer

    p.s. This will occur in the state of Missouri.

  • Stephanie

    Is it possible to modify a child support order/ custody of visitation based on the sole facts of… My sons father has not seen in 61/2 months and is not paying child support regularly he is very inconsitant with seeing him and paying child support and I feel that it is not good for my son to see and have to go through this. When my son turns 3 his father can now keep him over the weekends and i dont feel that it is the best thing for my son right now. What can I do?

  • Haley

    In Iowa, if I have sole physical and legal custody of my nine month old son, am I able to change his last name from his father’s to mine without his consent?

  • caitlyn

    hi i used to have sole custady of my daughter back in 2009 up untill jan. 2012 when my daughters grandmother went and filed for custady and we now have joint custady….. i didnt think it was possible for that to happen….. in new york state does a custady case become in void and not exist anymore if the mother gets back with the childs father? im just trying to get physical custady back of my daughter and the grandmother is giving me loads of problems….someone please help

  • Meaghan

    Hello,

    My fiance’s ex has sole legal and physical custody of their 5 year old daughter. I went to visit my future daughter at school the other day with her Nana. We had a great time. I also brought mine and my fiance’s 5 month old son to see his sister. When the ex found out she got very angry and said I needed permission from her to go visit the school. Is that true? Do I need to ask her evey time I want to go visit? I live in the state New Mexico.

  • Celia

    What kind of custody modification would it be reasonable for me to ask for after 6 years of 50/50 joint legal/physical with my ex-husband, under the circumstances below?

    - School attendance issues (90% of tardies and unexcused absences on HIS days)

    - Lack of homework supervision reflected in the penalties the kids systematically accumulate at the beginning of the week when they are with him

    - Ongoing controlling behavior (trying to appropriate my custody time without fair trades, grilling the kids about my private life, calling the cops on me while they are here, over a disagreement on interpreting the order, trying to micromanage my life from how I dress them to what brush I use for their hair, etc.)

    - Unwillingness to facilitate time with my side of the family (all maternal relatives in Europe, consistently refused to trade time so I have enough time for a viable visit, whereas I gave up (not traded, *gave up*) my half of spring break twice for the kids to travel to his dad’s.

    - Actual custodial interference incidents–not disagreements over how we interpret the order, but clear violations (took my Thanksgiving for 2 of my turns, and half of last year’s holiday weekend, kept the kids out of state 4 days beyond his allocated annual 2 weeks–after denying me extra time for my vacation, consistently keeps the kids half the day on Mother’s Day to reserve that time for their step mom–even telling me they’ll be here by a certain time and showing up at 6pm so I have 2 hours to enjoy my Mother’s Day with them before bed time, etc.)

    - Using the kids as messengers for leverage in ways that make me look like the bad guy (telling them I need to pay for such or such school fee because “he gives me over $100 a month in support to pay for things like that”, having our 6-year-old call me to ask “why won’t you let us see grandma” after he tried to hijack my Independence Day weekend, for which I had made travel plans, with 10 days’ notice (the plan requires 30), or consistently dangling shiny things in front of them for my custody time to try and pressure me into giving it up because of the expectations he created without consulting me.)

    - Anxiety all of the above have caused me and how that undermines my right for peaceful enjoyment of my parenting time.

    - Pot use (apartment reeking when I drop off the kids, paraphernalia in the kitchen sink in their presence)

    - Potentially unsafe environment/emotionally abusive for the kids, as exemplified by
    a) things my 10-year-old said in my presence in therapy sessions (how he is a referee in dad’s nasty arguments with his wife to try and calm things down, how “dad just gets really mad at her and so he yells at us too even if we’ve done nothing wrong”, how his hope for his own relationship down the road is one “where the yelling stays at a 5 or 6, not a 9 or 10″, etc.)
    b) The kids starting to play pretend drunk at my house since a couple years ago ( I had never had more than a beer in their presence at that point)
    c) his getting the cops called on him by neighbors during a violent argument with his pregnant wife that had the kids terrified their dad would be taken to jail “because of all the yelling and the crying and the ‘help me’s’”, in my 10-year-old’s words.

  • Megan

    I was wondering if my husband said to me in a conversation we had that no matter what happens( if we get a divorce) my daughter would stay with me . Can that hold up in court if he changes his mind?

  • Z.J.M.C

    I am trying to figure out if a non-custodial parent can obtain guardianship of a 16 year old minor in South Dakota. I am also looking for legal advice on the best way to go about such a process and the forms and information that needs to be obtained before trying to file for Gurdianship of a minor. The minors biological mother does have custody of her but the child is willing to do just about anything to change that. The minor has informed me she would like to reside with me until she is of age to make her own decisions and has asked that I to try obtaining some time of legal standing allowing her to stay with me. What do I need to do to obtain some type of custody or legal recognition for this child???

  • bama

    We have received full legal custody of our great niece. We are wondering what we need to do to change her name?

  • Young mom

    In Jan me and father of my 6 month old child split up. everything was fine we shared time between us and he lives with his parents and they would keep him if I need them to but not long ago my childs father got mad at me over nothing really and decided to lie to his parents anyway, they kept my son from me for two weeks with NO contact. and I am the only caregiver he has had to this point.. they didn’t kno my son and his diff cries, I do. I have no custody papers neither does he. I am having to file on my own bc im broke and legal aid is booked. Question is what form of custody should I file for and any stipulations I should address in preparing my own custody papers… basically wat should I say and ask for as far as visitation for them and solid rights for me that will protect me and my son. PLEASE HELP

  • Courtney

    My husband has sole custody of his daughter. MOm has not seen daughter in two years now. She is supposed to be paying child support which she isn’t as well as helping with medical bills. We provided her a statement for orthodontics and what her share would be. Can she legally get information from the orthodontist (records) etc without our consent. We have a family account and we do not want her to have access to our account. Please help

  • melinda

    girl I would report a kid napping. Grandparents have no legal standing to keep a child from its mother or father unless ordered by court. And if you and the baby’s dad was only dating and there is no legal paternity there or court order he can not legally keep the baby from you.

  • prissy roth

    hello i have a question my friend who was recently sent back to her country needs help she hasnt seen her kids since she was sent back because the dads say they dont have to send them to see her but the kids want to see them..she was told she would have to ge ta lawyer in the USA to fight this her sons father doesnt live with their son he is constantly moving out and leaving the child for his parents to fend for but yet wont let child move to her country where she is a teacher has good ties owns her own house etc…and the boy would be with her..the boy had both of their last name and son told mom dad told him he had her last name removed without her knowledge or consent and he as well manifested to the 10 yr old dat he had filed for custody and told the judge he didnt know where she was when he know exactly where she is because the mother pays a monthly cell phone bill for her and her son to communicate everyday she sends money to the states to help with what she can is there anything i can do to help my friend and her child.she has an issue with her daughter to where she signed to give the granma full custody so the child can get government help with medical food while she was away with her ins case…she was under the impression that in the state of ny they needed that so she can get all benefits thats what she was told

  • dan

    in the state of KY.. i gave my father custody rights of my child while i moved to TN. to make a better life for my kids. i retured after getting a place for all 3 of them to have there own rooms. when i showed up my father who dose not like my husband showed me a paper that he got my child to get. the paper stated that the child gave him custody of my child and if i try to take her home with me he can press kidnapping charges on me. i want my kids thats i have done this what should i do now??

  • mom needs help

    I am trying to get custody back of my 12 year old son am i able to talk to his doctor about his file even though I do not have custody

  • Julia Rappeport

    I gave birth to both my kids and gave them up when they were babies. My cousin adopted them and he lives in NY. I live MD. I gave them up here, my oldest is 18 my youngest is 16, can I still get them back? I miss them very much. My future husband is willing to help me raise them.

  • Donna

    My son was awarded sole custody of his two daughters in 2007 in California, the Mother lives in TN.. He was in the Army, so was transferred to another state in 2008. He now lives in OH, enrolled his children in school there. He had to supply a copy of his custody papers to the school district. They are telling him that his custody of his two daughters is null and void as of 2012, because he didn’t make it back to CA for a hearing that he knew nothing about since he hasn’t lived in the state since 2008. The school is telling him he has to refile for custody. However, his original custody papers do not have any stipulations stating that there would be a hearing in 5 years or that he would have to refile at a later date and the Mother has not filed anything. We are very confused!