By Marlo Van Oorschot
Van Oorschot Law Group PC

Custody, one of the most heated areas of family law, consists of two parts:  legal and physical custody. Physical custody defines which parent will have physical time with the child as well as who will be responsible for the children during those designated periods of time. Legal custody defines which parent will be making decisions regarding the child’s welfare, education, and health. While people are accustomed to the issues surrounding the sharing of physical time, people are not as familiar with sharing the decision-making rights the encompass legal custody. 

Legal custody, like physical custody, can be creatively crafted and split up between the parents. While joint legal custody (which requires joint decision-making by parents) is typically the default arrangement between parents, there are circumstances where this is not appropriate or workable. Sometimes, there are issues that parents are simply unable to agree on and one parent is considered the better decision-maker on certain issues on behalf of the child. 

Below are some examples where aspects of legal custody can be carved out to help keep the peace between the parents, as well as for the child:

• Education: Parents will sometimes hit an impasse as to which school their child should attend. While a court will not choose the school, a court will, however, hear evidence and testimony as to which school is in the best interests of the child as a means of determining which parent should be given the right to choose the school.  If appropriate, the court will then award sole legal custody as to education, only, to one parent so they may enroll the child in the particular school without the consent of the other parent.  The other parent retains all rights to access their child’s school records and to participate in school conferences, events, and the like.

• Medical: If the parents have continual conflict over medical decisions, or if one parent continues to act unilaterally and does not include the other parent in medical decisions, a court may award sole legal custody for medical decisions to one parent. Sometimes, the carve out for medical care is even more narrow. For example, one parent may be awarded sole legal custody as to psychiatric or psychological care, or over a child’s vaccinations. 

Sole legal custody, in whole or in part, is not the common nor desired result for a court.  Courts want parents to cooperate in raising their child.  However, the court also does not want to see parents who repeatedly endure conflict and litigation over the same issues thereby placing the child in the middle in a way that their education, health, and welfare are negatively impacted. A court is keenly aware that these disputes trickle down to the child, likely causing unnecessary stress and anxiety for the child.  In the end, these issues always come down to what is in the child’s best interest.