What is Joint Legal Custody?
In a Georgia child custody context, "joint legal custody" means one of two things. Either both parents have "final decision-making authority" in a joint legal custody case, or one parent has final decision-making authority. As a result of this, one parent usually has primary physical custody of the child. In any event, it would be very, very rare, almost impossible, for a Consent Agreement or Final Order in a contested case to give joint legal custody to two parents without some language defining either 1) the procedure through which final decision-making authority will be decided; or 2) defining exactly how final decision-making authority will be divided between the parties.
In the vernacular, "joint legal custody" means that the two parents are to make decisions together "of a substantial nature," including medical, school, extracurricular, religious, and travel decisions. However, this does not mean that they have to agree on everything, or that one parent cannot make a certain decision after consulting with the other parent. It just means that once a decision is made through dialog and agreed upon, both parents have to honor the decision (unless there is a substantial reason not to do so). As a practical matter, in addition to usually giving primary physical custody of the child to one parent, joint legal custody means that any decision that significantly affects the child’s welfare or upbringing must be made with consultation between both parents, or at least that both parents have a say in the matter, or that one parent at least includes the other in the process .
One of the most important areas in which joint legal custody plays an important role is with respect to educational decisions for the child. When one parent has sole physical custody, the educational decisions are made by that parent. However, when parents have joint legal custody, they are making educational decisions together. If the parents cannot agree on an important educational decision, then the court will usually make the final decision on who should have final decision-making authority over that matter.
The parents are still to advise each other when there are issues pertaining to the educational upbringing of the minor child. For example, a parent with final decision-making authority over educational decisions will have to consult the other parent if a child needs to get an Individualized Education Plan (IEP), or if a child seeks special accommodations in school. A parent may schedule a time to meet the child’s teachers, may participate in IEP meetings, and may take a role in general school administration. However, it is the parent with final decision-making authority over educational decisions who ultimately makes decisions about the child’s schooling, vacations from school, activities after school, and who the child may have as friends.
The Significance of Decision-Making Authority
Among the essential components of joint legal custody is the concept of final decision-making authority, which is the right of one parent to make decisions concerning the welfare of the child that are binding on that parent and the other parent. Although the Court may grant only one parent this ability, the Courts are increasingly granting joint decision-making authority as well. To the extent the one parent retains this ability he or she retains control over the final outcome. An example is in the medical context. If you have joint legal custody of your children, are generally consulted in medical decisions surrounding their care, but retain final decision-making authority, your ex-spouse may generally not override that decision and take the kids for a second opinion or to a treating doctor who is not part of their regular care team. However, if it becomes apparent that your dispute with your ex-spouse may cause harm to the children, the Court reserves the ability to temporarily suspend your right to final decision-making authority and render the decision for you.
The concept of final decision-making authority is not the same as making all decisions for a child. Joint legal custody typically requires that you and your ex-spouse be consulted in all major decisions of your children’s welfare, including education, medical care and religious upbringing. The days of one parent being a dictator and the other just going along are over. Things have changed and the Courts are not awarding joint legal custody often.
Determining Final Decision-Making Authority
When the parties share joint legal custody, the final decision-making authority over the children is a separate decision of the court from the actual award of joint decision-making authority. For example: in Smith v. Smith the parties shared joint legal custody, however, the court awarded mom final decision-making authority to make all medical decisions for the minor child.
When a court is deciding who gets the final decision-making authority, the fitness of the parties is the primary factor. Courts will also look at which party has been the more active "hands on" parent in the past. Although it is not an absolute factor in determining custody, many courts will look at which party is more likely to encourage a continuing relationship with the other parent. If one party has refused visitation with the other or has made disparaging marks about the other parent to the children, this is a factor that many courts will look at when determining which party to award final decision-making authority if joint legal custody if proper under the law.
Resolving Disagreements in Joint Custody
Disputes over decision-making involving a minor child are appropriately addressed in mediation (as a precursor to litigation), in reduced forms of child support enforcement litigation (i.e. motions to enforce litigant rights), and as core custody issues in divorce actions or post-divorce actions.
Even where the parties have entered into a judicially-approved property settlement agreement embodied in a judgment of divorce that gives one party sole custody over a minor child (or over all of their children in situations with more than one child involved), that does not mean that disputes over decision-making authority cannot or will not arise.
In those situations where the parties have entered into an agreement or stipulation that places sole legal custody with one party, evidential cases hold that the parent with sole custody has both the presumptive right as well as the obligation to make decisions regarding the child or children’s health and welfare. While final decision-making authority is initially vested with the sole legal custodian, he/she/they are still obligated to make reasonable decisions regarding the other parent’s access and contact with the child (or children) and should do so in good faith and consistent with their best interest. In fact, in Fischer v. Fischer, the New Jersey Supreme Court held that even in circumstances where sole legal custody of a minor child was awarded to one party, that party is required "to make reasonable decisions which affect the ‘best interests’ of the child within the scope of [his or her] custody and visitation rights… [and that] the sole custodian has a right and duty to consider [the] interests of the non-custodial parent in his or her relationship with the child" (Fischer v. Fischer, 374 N.J. Super. 280, 290 (App. Div. 2004), citing Lacobelli v. Black, 343 N.J. Super. 68, 75 (Ch. Div. 2001)). This includes keeping the other parent apprised of and/or consulting with him/her regarding the child’s major life decisions.
When parents have joint legal custody over their children, meaning that neither party has sole legal custody of the child, disputes over decision-making for the child are to be resolved through mediation first, and then through the court if no resolution can be achieved at the mediation session. This means that the non-custodial parent (or the non-primary caretaker parent in a parenting time context) has standing to file an application with the court on the basis that the custodial parent is making unilateral decisions pertaining to the child. The relevant statute, N.J.S.A. 2A:161-5(i), provides that all applications affecting custody or parenting time must be referred for mediation and if, after mediation, the dispute cannot be resolved, the court will entertain the motion or application.
The court has other avenues available to it when addressing conflicts over decision-making, including, but not limited to, allowing the parties’ counsel to resolve the issue, appointing a guardian ad litem for the child to assist in resolving the dispute, trial, appointing parenting coordinators, and the like. The Gemini court also posited that the court’s power to appoint a master, who would "be empowered to resolve disputes, investigate matters, make recommendations, and carry other responsibilities as justice requires until further order of the court[,]" is an appropriate tool in these types of instances (Gemini v. DiCaprio, 405 N.J. Super 53, 62 (App. Div. 2009)).
Legal Considerations of Final Decision-Making Authority
The determination as to whether one parent will have final decision-making authority or if the parties will share this responsibility equally can often be a contentious issue for parents. The determination of final decision-making authority for children in Illinois is based primarily on the best interest factors as set forth in 750 ILCS 5/602 of the Illinois Marriage and Dissolution of Marriage Act. If the Court finds that it is in the best interest of the child to award sole final decision-making authority to only one parent, then this parent will essentially be the sole decision-maker regarding major life issues in relation to the child. This parent will have the sole and exclusive authority (i.e. "final decision making authority") to make decisions regarding major long term issues of medical care, religion and education, but will still be required to make day to day decisions as a parent. Major decisions regarding other issues affecting the child, such as the child’s extracurricular activities , will often require the consent of the other parent, even if one parent has been granted final decision-making authority as to one or more of the areas of child related issues set forth above. A parent who is awarded final decision-making authority should bear in mind that other factors related to parental responsibility will likely affect the parent’s ability to make certain decisions that may affect the child’s overall wellbeing. For example, the Illinois Marriage and Dissolution of Marriage Act sets forth various factors that will determine parenting time and parental responsibilities. If one parent is awarded final decision-making authority regarding the child’s education, but does not have adequate parenting time with the child (i.e. if the child’s primary residence is with the other parent), the court may require the parent with final decision making authority to consult with the other parent prior to making certain educational decisions for the child.
Modification of Decision-Making Authority
When there is an initial order awarding joint legal custody and one parent has final decision-making authority, the other parent cannot modify that award without showing there has been a substantial change of circumstances, the prior arrangement is not working out, reiterating the best interests standard and why it serves the child for the other parent to have less of a say. There are a number of ways a parent can be given final decision-making authority, even when both parents were awarded joint legal custody. There may be a very specific area for which one parent is given final decision-making authority as to such issues as extracurricular activities, religious decisions, daycare, or extracurricular activity fees, for example. Or, one of the parents may have been given final decision-making authority as to all issues, reflecting the fact the parties stipulate during the pendency of a divorce that one person was asserting much greater decision-making authority than other parent. This can occur if the first person refuses to include the other parent in anything decision-wise – from extracurricular activities, school issues, even whether or not a play date ought to be arranged. That person may likely find themselves with that authority. Alternatively, an initial order can provide that final decision-making authority is to reside with one parent until the child reaches a certain developmental stage or age, allowing for the other parent to seek modification at that time based on changed circumstances. For example, a parent may be awarded final judicial decision-making authority until the child is 21 years old. Such situations are fairly rare but, if they occur, the parent with the initial judicial decision-making authority will continue to have that authority when seeking modification.
Co-Parenting Effectively with Joint Decision-Making
Whether you have shared decision-making authority over a child or sole decision-making authority over a child, there are some things that can help make your life and your child’s life easier when it comes to schedules, activities, doctor’s appointments, school functions and travel. Here are a few tips:
- Put the parenting time schedule on your phone and have it set up as an appointment. If you have shared decision-making authority, you will likely have a different parenting time schedule than others. When an appointment comes up, you will be able to quickly see when you have the child so that you can plan accordingly.
- Communicate regularly with your co-parent regarding the child’s activities and what is going on from a school perspective. Try to work together as co-parents so that you are on the same page and know what your child’s extracurricular activities are.
- Make sure you know what extracurricular activities your child is participating in so that you can help financially as needed.
- If you share decision-making authority , try to communicate with your co-parent regarding any travel plans (i.e. vacations) as early as possible to get them on the calendar, as well as any other plans for birthday parties or other places that require advance notice.
- When scheduling family vacations, utilize a family calendar so that decisions regarding time off from work do not create a conflict.
- Work together to split large expenses. You both have a vested interest in your child performing well in school, so be prepared to split the cost of tutoring, summer school, and even college expenses.
- Talk to your co-parent about your concern that certain behaviors of your child are affecting them negatively. If the behaviors are continuing, contemplate getting counseling.