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.
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).
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.