When there are disputes over custody and visitation, they are often physical, rather than legal, custody issues. Physical custody refers to where the child(ren) spend their time and it can be awarded as either primary physical, shared physical, or split physical custody.
Legal custody, though, refers to the right of parents to make three types of decisions on behalf of their children: non-emergency medical care, religious upbringing, and education. Legal custody is almost always awarded jointly between the parties because the court views the ability of both parents to contribute to these kinds of decisions as fundamental. It can be awarded solely to one party or the other, but it’s rare.
So, what issues come up – and how are those issues resolved?
Non-emergency medical care
Most parents aren’t making a ton of medical decisions for their kids. They take them to their well child checks and they follow their pediatrician’s advice. It’s possible that there could be issues, particularly when it comes to vaccines and vaccination schedules, that could come up, but – mostly – issues are rare.
This specifically doesn’t cover emergency medical care, like if your son fell out of a tree that he was climbing, broke his leg, and needed surgery. That would likely be categorized as emergent and the person who had parenting time when the injury occurred would make the call – which is not to say that there’s really much of a decision to make, anyway. Sure, you have the surgery, but you’re still only following medical advice. As a general best practice, I think it would be wise to let your child’s coparent know about the injury, especially if surgery is imminent, but many families – particularly ones with high conflict or abusive partners – might choose not.
There’s a line that could be crossed, too. While you (or he) are probably fine dealing with the immediate aftermath of an accident alone if it’s your parenting time, as the situation calms and stabilizes, you’d likely be expected to consult with, or at least consult, your coparent. But it’s specifically non-emergency medical care on which you are expected to consult.
Religious upbringing
For many families, the religion thing is a non-issue because they are either practicing their preferred religion or they’re not, but it has always been a fixture in their lives. It’s rare that religion becomes an issue in a divorce, but I have seen it happen once or twice – usually, becomes someone has converted or is born again after the separation (or maybe even because of it). There can be tensions, but, generally speaking, the court will allow either (or both) parents to practice their religion on their own parenting time. In the unlikely event that a court intervened, it would be because the practice of the particular religion was at an unhealthy level – so, something like a cult-style scenario or something that was abusive to the children.
It would have to be extreme for the court to intervene, so, in all likelihood, this is one of the areas that even less of an issue than the others
Education
Education can – in some cases – pose an issue, especially if there’s a raging debate on the merits between public and private school (or even homeschool). Usually, the court is reluctant to force someone to keep a kid in private school, especially if they’re saying they can’t afford it. I’ve seen the court order kids kept in private school a few times, but usually for specific reasons – that this particular school has a unique program for the child(ren) in question, or that they’re much older high school aged kids for whom moving schools would be traumatic and not in their best interests.
Mostly, if pressed, the court will order public school.
For the most part, these issues are fairly well-established and the number of conflicts that can come up are limited. Still, every so often, someone will come in with a unique issue for which there is no other solution than having a judge weigh in.
If you don’t put something specific in your custody or separation agreement, the judge would be the ultimate decision maker if the two parents could not make a decision together. Alternatively, you could put a provision in your agreement about who could cast a tiebreaking vote – most commonly, we see the child’s therapist. Of course, having any non-parent be a final decision maker is an uncomfortable position to be in as a parent, but it may be better (and more efficient, and less expensive) than filing motions and going back to court each time you and your coparent have an issue.
It’s not perfect, but any other scenario would involve giving one party decision making authority over the other – with potentially disastrous impact. Mostly, though, legal custody is not the biggest issue we face in custody cases.
For more information, to download our custody guide for Virginia moms, or to register to attend an upcoming Custody Bootcamp for Moms seminar, visit our website at hoflaw.com or give us a call at 757-425-5200.