May 10, 2021 Feature

Legal Custody and Decision-Making

Ben Schenker

Divorce is a highly stressful, emotionally fraught process that becomes even more so when minor children are involved and the issues of custody are considered. There are two types of custody: physical custody, which is essentially where the child will live, and legal custody. Physical custody generally carries with it the responsibility to make smaller day-to-day decisions during the period of physical custody. Legal custody is more about the “bigger picture” and generally involves decision-making in four major areas: education, religion, health care, and extracurricular activities.

Types of Legal Custody

Sole Custody

It is possible for only one parent to have legal custody, meaning that that parent gets to make all the major decisions about the child’s upbringing. One parent having sole custody is generally the result of the other party’s abuse or neglect, the other party’s not having a relationship with the child, or the other party’s not being able to maintain a relationship with the child (i.e., because the parent and child live too far apart). This is not necessarily the norm, and in most cases, states actually prefer joint legal custody.

Joint Legal Custody

Joint legal custody, as its title implies, involves parents coming together to make big-picture decisions about how the children are raised. Keep in mind this has nothing to do with how much time the child spends in the physical care of each parent. This arrangement is often best for the children and the parents, but it requires significant effort, communication, and robust co-parenting skills. However earnestly both parents work to achieve agreement, it cannot be reached in every situation. For example, if one parent prefers X and the other parent prefers “not X,” and no compromise can be reached, other remedies must be considered.

Aspects of Legal Custody

Legal custody issues include religious, educational, medical, recurring extracurricular activity, and other major matters affecting the child’s welfare and upbringing.

In our pluralistic society, decisions regarding religion, including which specific denomination is desired or if there will be no religious affiliation, have increased. Additionally, there may be decisions about the degree of involvement (for example, whether a child will be educated up until a first communion or a bar/bat mitzvah, and then whether there will be education or training following those rites). When the child spends significant amounts of time with each parent, there may also need to be decisions about whether each parent may observe different religious traditions with the child on his or her time or choose not to take the child to religious classes or services. Many religious traditions include dietary restrictions, and a further decision may be if or whether such dietary restrictions are observed in each home.

Educational considerations, which are generally mandated by state law (i.e., truancy laws), can be as straightforward as sending children to public schools for kindergarten through 12th grade, or can be as detailed as which school within a certain district or even to which specific classes (e.g., AP vs. regular) the student should attend. When each parent resides in a different school district or attendance area, parents may also need to address which school or district the child will attend and whether one parent’s address must be designated as primary for school registration purposes.

Medical decisions, like educational considerations, are generally mandated by state law (i.e., failure to seek medical treatment could be neglect). From a legal custody perspective, the parent caring for the child at the time would have the latitude to decide whether to put a bandage on a scraped knee, but when therapy might be needed to develop motor skills, whether braces are crucial, or whether psychological treatment may be appropriate may well involve the decision of both parents. As well, if a health care provider offers possible alternative courses of treatment for any chronic or long-term condition, this is generally a major decision to be made by both parents. When follow-up appointments are required, or medications or treatments are to be administered in the home, the parents will generally need to address the responsibility of each to follow the prescribed regimen during his or her time. Keep in mind, however, that no matter how medical decision-making authority is allocated, the parent with the child at the time generally has the authority to authorize emergency treatment without the need to confer in advance with the other parent.

Extracurricular activities also are an aspect of legal custody. This includes sports that are played and clubs that are joined, whether for a school or not; summer camps; before/after-school activities; and weekend activities. Those seasonal or recurring activities will generally include lessons, practices, or games on each parent’s scheduled time. While each parent will generally be free to take a child skiing, swimming, or the like during his or her own time, neither can unilaterally enroll the child in recurring lessons or sign the child up for the local team. Apart from the time commitment, sports and enrichment activities often also involve expenses for registration fees, equipment, instruments, uniforms, etc. Again, neither parent can make a unilateral commitment and expect the other to share the cost.

Interaction Between Aspects of Legal Custody

In the prior section, four common issues of legal custody were discussed. However, they do not exist in vacuums. Interaction between the various aspects can create even greater concerns.

For example, religious decisions can affect education decisions: A private school may mandate certain religious training, or a public school could be objectionable because of its teaching of evolution. In certain circumstances, religious decisions can impact medical decisions. For example, Christian Scientists may forbid vaccinations (and although several states allow children to be exempted from vaccinations for personal beliefs, other states only allow vaccination exemptions for religious beliefs). Additionally, religious decisions can impact whether a child can participate in certain extracurricular activities.

Educational decisions can have an impact on medical decisions: As mentioned above, vaccinations may be required to enroll a child in public school, so if the ultimate decision is that children attend public schools, the medical decision may have to be to require vaccination. If a child is diagnosed with a learning disability, the treatment or Individualized Education Program (IEP) will most likely involve both medical and educational decisions. Similarly, educational decisions can have an impact on extracurricular decisions—if an activity is too time-consuming (child athletes) or otherwise interferes with schoolwork.

Finally, medical decisions can have an impact on extracurricular activities (e.g., an asthmatic child playing strenuous sports or when one parent wants a child to play football and the other parent has concerns about concussions).

Impact of Legal Custody on Support

Legal custody may be determined outside of issues of support (child support or spousal support/alimony). However, that does not mean that such decisions do not impact support.

In the context of decision-making, the best educational decision may involve using a private school, and an expensive tuition might require additional support from the payor spouse. Further, religious education may be provided free by a church, but some religious education, whether at a day school or an after-school program, can require significant expenditures.

If a parent thinks that a certain course of treatment (maybe diagnosis and therapy for developmental issues) is appropriate, then that could result in additional support being necessary.

These decisions may also require changes in spousal support. It could be that one parent has stayed at home to raise the children and, at the same time, forgone education, training, or work experience. If it is in the best interests of the children to maintain this relationship, as decided by either the parents or the courts, then higher alimony may be required (especially if the parent is providing home schooling or another service to the children that makes outside work difficult).

Solutions and Remedies

Mediation

Requiring parties to attend mediation before seeking court intervention is a way to try and prevent log jams. It allows parents to discuss an issue with a neutral third party before litigating. However, mediation is no magic bullet, and if the parents are unwilling to negotiate and compromise, a resolution satisfactory to both parties may be impossible. One of the cornerstones of mediation is that it is voluntary; if the parties cannot effectively determine a mutually satisfactory outcome, mediation will be fruitless.

Tiebreaker Authority

It is possible to have one parent given “tiebreaker” authority regarding one, or more, of the above-described categories (health, education, religion, extracurricular activities). The tiebreaker authority would mean that, ultimately, that parent would be allowed to make the final decision, usually with substantial discussion required before that parent makes the decision. Although this can be advantageous in avoiding log jams and relitigation, it is essentially sole legal custody, and clients may not want to accept that situation.

Division of Legal Custody

Another way to make joint legal custody more palatable is to divide decision-making authority by category of decisions. For example, Parent X may not have any strong interest in the children’s religious upbringing while Parent Y would, so Parent Y would make decisions about religion; in that case, perhaps Parent X would be in charge of education and extracurricular decisions, but Parent Y makes decisions about medicine and religion. This can be a possible solution for some families, but, as discussed below, it can lead to unintended consequences.

Physical Custody Acts as Tiebreaker

One other way to resolve conflict is to give authority to the parent who has actual physical custody. When physical custody is split, it could be especially helpful if a medical emergency occurs; it could be that a treatment plan must be decided upon immediately, and if the other parent(s) is/are unavailable, having the parent who has physical custody make the decision could be expedient. Similarly, the parent who has the child most of the time might be the logical one to make the final decision on the selection of the school.

Mediation

Mediation can be a very helpful way to resolve all issues of a divorce (including custody), or custody specifically. The advantages of mediation include the facts that it may be less costly than litigation and it allows the parties to control their own destiny instead of leaving it up to a judge. Also, in many places, mediation may be required when custody is at issue (and, in some jurisdictions, lawyers may not be invited or allowed to attend).

In such circumstances, preparing your client is crucial. Parents should be reminded that this is not about righting past wrongs. Reinforce to your client that custody is about making sure the children are in the best position, so some tunnel vision could be helpful. Make sure that they are clear on potential conflicts that may arise.

Litigation

Although litigation may just involve custody, when custody is at issue in divorce, it becomes part of the broader case, and custody interests or arguments could be used tactically, as a bargaining chip. It is also possible that clients will feel hurt and want custody out of spite. Lawyers are trained to zealously advocate for their clients’ interests, and children are not your clients (and the children may even have their own counsel). However, it is important to note that parents do owe a fiduciary duty to children. According to the “Bounds of Advocacy” of the American Academy of Matrimonial Lawyers, attorneys should not let clients use children or custody for strategic advantages or exacting revenge. Further, the “Bounds of Advocacy” state that lawyers should consider children’s best interests.

These potential conflicting interests can be very difficult to balance; family law clients can be in rough emotional positions and may be sincere in believing that, for example, the other parent is unfit to have decision-making abilities. Trying to dissuade such a client can be very difficult. And it is also difficult to determine the best path forward with a client who is very passionate and opposed to the idea that you may know better about their children’s best interests than they do. It can be complex to convince clients to switch strategies and use leverage that could be beneficial in other areas of a divorce litigation.

However, there are multiple advantages to using your counseling skills to focus your client on the children and their best interests, and in convincing them to sincerely put aside any personal interests. First, it could lead to a better result in mediation, and if clients can craft their own resolution instead of having it decided by someone else, the clients should feel more satisfaction. Second, being focused on the children may be seen approvingly by the court, which could go a long way in demonstrating that your client’s position is in the best interests of the children. And third, being too aggressive can backfire.

Parents or attorneys who demonstrate aggression or a lack of focus on the best interests of the child in high-stress litigation may well incline the court to decide that your client does not have the ability to effectively co-parent, and that could force the court to decide sole custody is the most appropriate result. The result could be that your client would then go from having the potential of partial decision-making ability to nothing.

Conclusion

Being involved in a custody case can be extremely stressful for everyone involved. However, by being empathetic, counseling clients to keep being the best parents they can be, reminding them to be forward thinking and to focus on what actually is best for the children, and doing it whenever possible, you give your client the best opportunity to negotiate an agreement that both is satisfactory to the parents and puts the needs of the child in the forefront. fa

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Ben Schenker is a mediator and attorney who practices family formation, estate planning, and tax law in Washington, D.C., and Maryland. He is a past fellow of the Family Law Section and is the vice chair of the Section’s Modest Means and Taxation Committees and the co-chair of the Special Needs Families Committee.