Joint Legal Child Custody

Posted on Apr 9, 2018 by Katie Carter

Joint Legal Child Custody

Everybody fusses about physical custody, because that has to do with where a child spends the majority of her time. Physical custody is a big deal; in fact, it’s what we litigate on most of the time, because everybody wants some kind of specific amount of time with the child.

When we fight over legal custody, the fights look a little bit different. After all, legal custody refers to the right to make three types of decisions on behalf of the child: (1) religious upbringing, (2) education, and (3) non-emergency healthcare.

As you can probably imagine, these things don’t come up all that often. Most of the time, especially when we’re dealing with older children, these issues have already been pretty well established. Your kids are in school, they’re either going to a particular church or not, and you follow the pediatrician’s recommendations. There’s not that much to decide on a day to day basis, so legal custody, and the issues related to it, aren’t really things that we discuss on an everyday basis.

In other cases, though, legal custody does come up.

What issues does legal custody raise?

When it comes to legal custody, there are a certain set of specific issues that can sometimes arise.

Religious Upbringing

Usually, the religious upbringing side of things has to do with a child being raised in a faith background of which one parent isn’t comfortable. I’ve seen issues raised with particular religions (a parent didn’t want a child raised Catholic, or raised Muslim, or whatever). I’ve also seen issues where a parent didn’t want a child raised in atheism.

Generally speaking, these are the least important because judges are pretty tolerant, and will allow each parent the freedom to impart their religious beliefs. Usually, the judge says one parent can take the child to church, temple, synagogue, or nothing at all on their time, and the other parent will have the same opportunity.

That being said, though, I haven’t had a specific issue with someone who practiced witchcraft or devil worship or something like that, but it might be that a judge would take an issue with that – still, it’d have to be so severe as to rise to a level that didn’t take the best interests of the child into account.


Education can be a bigger issue, mostly because then we get into the private versus public school debate.
The problem here is that there’s money involved, and it may be realistic that one parent or the other argues that he or she just doesn’t have the money to pay the private school tuition in light of all the other expenses they’re facing. Judges try to be reasonably sympathetic to that kind of argument, which may be frustrating if you’re the one wanting to enroll or keep your child enrolled in private school.

The judge will also consider what the child has been doing prior to this point. If you’ve got a high school junior, it’s probably more likely that the judge will order the child stay where he or she is currently enrolled than if we’re discussing an incoming kindergartener, who could go anywhere and not know any different. It really all depends on the facts and on the judge.

Non-Emergency Medical Care

Most of the time, non emergency medical care isn’t an issue. Sometimes, it comes up in the case of people who are anti-vaccination (of course, it’d only be an issue if one parent wanted vaccinations and the other didn’t), or for whom their specific religious beliefs exempt specific types of treatments (blood transfusions and such).

In this type of case, experts would likely be involved, and the judge would consider, as always, the best interests of the child.

What does legal custody require of me?

Legal custody is generally awarded jointly, because judges feel that the right to making these types of decisions on behalf of a child are fundamental to parenthood. It can be awarded solely to one parent, but that’s super rare. (And, often, when I’ve seen it, it has been temporary – like, when one parent is deployed, or something like that. But when the deployed parent returns, joint legal custody is restored.)

Legal custody requires that you collaborate on these type of decisions. You discuss, and reach an agreement together. Technically speaking, neither of you can do anything over the objection of the other.

What if we have joint legal custody and we can’t agree about what’s best?

That happens sometimes. If you’ve discussed and you can’t agree, or if you haven’t discussed and he’s done something without your approval, you have to take it to the judge. Basically, he’s the tiebreaker vote. Since there’s only two of you, if one says yes and the other says no, you have no other option except to take it to court and let the judge decide.

Isn’t that terribly expensive? Probably yes. Like all things, you’ll want to entertain a real cost/benefit analysis before you decide to just up and take an issue to court. Ask yourself, “Is this really worth it?” “Do I really object?” And then, if so, why? On what basis? Is there anything he can do to help overcome your objections? Hopefully, having these discussions will help the two of you coparent better. If not, there’s always court.

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