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.


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