Sharing custody with an ex is difficult, even under the best circumstances. No matter what, it’s hard to face the idea of splitting your child’s time – especially holidays, vacations, and other special occasions – and knowing that means you’ll have less time, possibly by as much as half. Weekends, too – obviously, these are prime custody real estate that many parents who litigate custody wind up fighting (and spending tens of thousands of dollars) over.
There’s more to custody, though, than just where the child spends his or her time. Admittedly, these other issues aren’t where most of our custody issues arise, but a fair number of issues relate to things other than physical custody.
What is legal custody?
Legal custody relates to the ability to make three types of decisions on behalf of the child: non emergency medical care, education, and religious upbringing. As you can probably imagine, in many cases, these issues don’t present a lot of problems. These are such big decisions that many parents have already made, and they just don’t come up. In other cases, though, especially where there’s concerns over things like vaccinations, private school, homeschooling, church enrollment (especially where the two parents practice different religions), and so on.
We talked about legal custody the other day in terms with collaborating with the child’s other parent over these issues, but particularly with school enrollment. Today, we’re going to talk about what happens when the child’s other parent is withholding information.
Legal custody is almost always awarded jointly, between both parents, because most courts view the right to make these kinds of decisions as central to parenthood. It’s not always awarded jointly, of course, because nothing is ALWAYS the case, but we see joint legal custody awarded in probably close to 99% of cases.
What does joint legal custody mean?
Joint legal custody means that the two of you must collaborate with respect to those three issues. Ideally, you’d sit down and discuss anything related to these three categories, and come to a mutual decision.
Sound unrealistic? It often is, especially in super, duper highly contested cases. Obviously, if he says yes and she says no, it’s one against the other. Who casts the tie breaking vote? Well, you may not want to hear this – but it’s often the judge. If there’s no way to reach a decision, and you’re at a total impasse, you may have to let the judge decide. Either that, or one parent does what he wants, and the other parent takes them to court for the judge to determine whether he can actually even do that.
It’s not ideal. It’s definitely better if the two of you can reach a decision together, but that’s not always possible.
What if my child’s father is withholding information?
Assuming you have joint legal custody (if not, you may need to file custody petitions to get joint legal custody first), if he’s withholding information about any one (or more) of these three things – education, non emergency medical care, religion – you can force him to tell you. You’ll likely have to use the court to get him to comply, if he won’t do it of his own accord.
What if I don’t want to give him information? What if my child doesn’t want me to?
Same deal. If you don’t want to give him information related to one of these things, you can hold it back – but just be aware that he may file petitions with the court to force you to give him the information he’s entitled to as a joint legal custodian of the child.
Everything – from where the child goes to daycare, to whether you’ll teach the child the tenets of Judaism, and even whether you’ll enroll the child in therapy – should be discussed and mutually decided on between the parents.
A child is a child – not an adult. That may sound obvious, but it’s not to many people. There’s no legal age at which a child can decide not to disclose information to the other parent; as a parent with joint legal custody, they have a right to that information. Now, that being said, it doesn’t mean they have a right to ALL the information. While I imagine a parent could get access to the child’s medical records, for example, I don’t know whether the court would release a therapist’s records over the child and the other parent’s objection, particularly if the parent and/or therapist testified in court that, for whatever reason, to disclose this information would be harmful to the child.
After all, everything related to custody, visitation, and child support is based off of the best interests of the child factors. So, while I think you could definitely get information regarding the child’s enrollment in therapy, for example, and even participate in the selection of a particular therapist, I don’t think that necessarily entitles you to notes from therapy sessions, for example. Though you could raise this issue with the judge, I think it would all depend on what was determined to be in the child’s best interests.
It’s not related to the child’s preference. There’s no age at which the child’s preference officially takes precedence (unless that age is 18 – when the child legally becomes an adult), especially in matters like this. Still, in most cases, you should be able to get almost all the information you could want, provided that you have joint legal custody.
What if I haven’t been allowed to participate in the discussion and I have joint legal custody?
If your child’s father has enrolled the child in, say, therapy, without your consent or knowledge, take a step back first. Do you oppose to the child’s enrollment in therapy? Do you oppose the therapist in particular? Or is your objection based mostly on the fact that you were excluded from the decision?
While you’re absolutely justified in feeling very, very angry that you were left out of such an important decision, I’d urge you to spend some time looking at the source of your feelings before you fire off petitions to the court. If you don’t actually have an objection to therapy (again, this is just an example), or the particular therapist, you may want to think twice about whether you want to file petitions.
It may be better, instead, to work with an attorney or talk to your ex directly. Let him know your rights as a joint legal custodian, and ask that he involve you in these decisions in the future. In writing is best, because then, if he does something like this over your objection again, you’ll have proof that you discussed this. However frustrating it may be to have been left out, if you don’t actually object to the substance of the decision, I suggest probably letting it go.
Give his decision a chance, too. Research the therapist. Get informed. The more you know, the more you can contribute intelligently on this subject when it comes up again. And, of course, the better you’ll appear in court.
Judges hate petty issues that come up, especially in divorce and custody cases. If you say no to something just because you weren’t consulted (especially if he makes the argument that he did what he did in order to protect your child’s best interests, and the judge finds that the child does need to be in therapy, for example), you’ll look like you’re engaging in a power play, rather than making a legitimate objection.
It’s hard when your child’s parent is withholding information, especially when you have joint legal custody and you know that you should be involved to a greater degree in making decisions related to your child’s well being. For more information, or to schedule a consultation with one of our attorneys, give our office a call at 757-425-5200.