Out of all of the legal concepts that divorce law includes, none is more emotional, or more misunderstood, than custody. For those of us who are parents, the first question that usually comes to mind when a marriage starts to fail is: what is going to happen to the kids? In order to answer that question, it is critically important to understand what legal custody is, and what it is not.
What is “Legal Custody?”
There are two aspects of custody: legal and residential. Legal custody is the right to make major life decisions – typically religious, educational, and medical decisions – for your child. Residential custody is who your child lives with most of the time.
There are two possible forms of legal custody: sole or joint. That is, either one parent has the right to make major life decisions for your child, or both parents have the right to have input into the major life decisions for your child.
If a parent has sole legal child custody, that parent has the right to decide what school a child attends, what medical care the child receives, and what religion the child is raised in without having to consult with the child’s other parent. The parent without custody may still have the right to receive medical and educational information about the child, but s/he has no right to make medical or educational decisions about the child.
If parents have joint custody, each of them is required to share information and consult with the other before making any major life decision involving the child. If either of them makes any major decision about their child without talking to the other parent about that decision, and getting the other parent on board with that decision, the first parent may potentially be held in contempt of court.
When Joint Legal Custody Works
In order for joint legal custody to work, parents absolutely must be able to talk – and listen – to each other. They don’t have to like each other. They don’t even have to always agree with each other. But they must be able to put aside whatever personal differences they may have with each other, and talk to each other about what is best for their child.
To have joint custody, parents also need to share at least some basic values regarding child care and child rearing. If one parent belongs to a very traditional, conservative religion, the other parent is a staunch atheist, and each parent is passionate about his or her beliefs, chances are that joint custody is not going to work for that couple.
Finally, in order to make joint custody work, parents have to be willing to compromise. Married parents don’t always agree on what is best for their child. Yet, somehow they find a way to work most issues out. (Some do it better than others, but that is a different discussion.) Divorced parents need to have the same ability to do the same.
The Legal View of Joint Custody
In many courts, joint custody is now the default option for the courts. Unless one or both of the parents fights for sole custody, many judges (maybe most judges today) feel that awarding joint custody is easier, seems more fair, and is presumably better for the children.
In some jurisdictions, though, joint custody is not the preferred option. Judges in those jurisdictions want to know that parents who have joint custody can actually talk to each other and work together for the benefit of the children. Why? Because when parents with joint custody get deadlocked over every decision that needs to be made for their child, invariably one of them files a petition in court, and the judge is stuck deciding where their child should go to school, what medical care their child should receive, and on and on. Trust me when I tell you that this is the last thing that most judges what to do.
To find out how joint custody is viewed in your area, you absolutely must consult with a knowledgeable attorney in your area.
The Real Truth About Legal Custody
Most parents would agree that having the ability to make decisions that will affect their child’s future is critically important. Obviously, then, legal custody matters. But, the real truth is that, even though having some form of legal custody (joint or sole) is important, it may not be nearly as important as most people think. Why not? Because there is more than one way to get decision-making power.
The way our society is structured today, just about everything costs money. Going to a doctor costs money. Sending your child to a private school costs money. Enrolling your child in any sport or extra-curricular activity costs money. Even if you do not have legal custody of your child, chances are you will be expected to contribute toward these expenses for your child. Doing so, of course, costs you money. But it also can give you a measure of decision-making power.
For the most part, before either parent can be forced to pay for certain expenses for their child (usually extra-curricular activities, private schools, elective medical treatments, etc.) that parent has to agree that s/he will contribute to the cost of that expense. Without obtaining that consent, the parent who signed the child up for an activity is probably going to have to pay the entire cost of that activity him/herself. Thus, in a roundabout way, the non-custodial parent is going to end up with a certain amount of “de facto” decision making power, at least with respect to anything that costs money.
What Legal Custody is, and What it is Not
Legal custody has everything to do with making decisions for your child. It has nothing to do with how much time your child spends with your ex. That means that, even if you have sole legal custody of your child, your ex is going to be able to spend time, and sometimes a substantial amount of time, with your child. As a practical matter, whenever your child is in your ex’s care, your ex is going to be making the day-to-day decisions that affect your child. So, even though you may have legal custody of your child, don’t think that means that your ex is not going to be able to make any decisions about your child, or that your ex is not going to affect your child. He is.
The bottom line is this: Even if you have sole legal custody of your child, your ex is still going to have some level of influence in your child’s life. So, is legal custody important? Yes. Of course it is. It is as all-important as you think? I leave that to you to decide.