Legal Custody: What does it mean? – Stauff & Gross Law

Last week we discussed the various forms of physical custody that can be ordered by a judge in a child custody matter. This week we focus on legal custody and its implications.

Legal custody describes who can make major decisions about the children. Major decisions often include where the children will attend daycare, preschool, or school; which pediatrician and dentist the children will see; whether the children will have elective medical procedures; which religion(s) the children will be taught; in which activities the children will participate and more.

One important clarification between physical and legal custody is that while “primary” and “secondary” custody refer to physical custody these terms are not commonly used to describe legal custody. Legal custody can generally only be sole or joint.

One parent has sole legal custody when he or she is allowed to make the major decisions about the children and is not required to consult with the other parent. Sole legal custody is not as common because both parents are presumed to be able to make decisions about their children. If the judge orders that one parent has sole legal custody, the judge must state in the order which facts from the trial support the decision to take away decision making from one parent.

Joint legal custody is the common designation of decision-making ability and is when both parents have the right to make major decisions about the minor children. It is important that the custody order define legal custody.  Saying the parents have joint legal custody without defining what that means could cause significant issues with the enforcement of the custody order. For example, a judge can order that both parents must make a good faith effort to consult on major decisions. In the event that the parents cannot reach an agreement, the judge can designate that one parent has the ability to make the decision. This can be referred to as “ultimate decision-making authority.” Another option is that the parents must come back to court for the judge to make a decision if the parties cannot agree.  An extreme option is that a parenting coordinator will be appointed who will be the ultimate decision maker. Judges try to prevent this option though because a parenting coordinator is typically very expensive for the parents.

If you want to discuss your particular custodial arrangement or how to change it, you can call 919-576-7550 to schedule a consultation with one of our attorneys.

Check back soon for an explanation of the best interests of the child standard used in custody cases.