Before understanding specific considerations involved in the allocation of the legal right to make decisions regarding one’s children, it is essential to unpack exactly what that legal right is and is not. This exercise is complicated by the fact that there is no uniform, national approach to awards of what many know as “custody.” Moreover, from state to state, the terms, definitions, presumptions, processes, and public policies regarding these matters can differ.
The term “joint custody” is often used by law people to refer to what, in the law, are distinct, albeit related and intersecting, concepts. For example, a parent may say to her lawyer, “I want to get sole custody.” That statement alone requires further inquiry on the part of the prospective attorney. Joint custody can refer to both parents sharing legal custody or decision-making responsibilities despite one parent having an allocation of primary physical custody, possession, or parenting time. It can also refer to a circumstance where the two parents share, on an equal or roughly equal basis, both physical custody and decision-making responsibilities. Making matters more complicated, it can also refer to a situation where one parent has the majority of parenting time or physical custody, but the decision-making responsibilities are shared between the parents.
Given the range of what can be called “joint custody,” non-attorney litigants and parents should become conversant with the terminology utilized in their state and what the specific distinctions mean as a matter of law and in the real-world setting outside of a courtroom. Attempting to do this also requires understanding what a thing was versus what it is now called. For example, in Illinois (and other jurisdictions), there has been a move away from the emotionally charged terms “legal custody” toward the more anodyne term “decision-making responsibilities.” Similarly, what was once called “visitation” has been replaced by the more benign sounding term “parenting time.”
Despite the many terms used in different jurisdictions, it remains the case that most states make a distinction between the rights and responsibilities that relate to parental decisions about child-rearing (legal custody) and the amount of time that a child resides with or is in the physical care of each parent (physical custody). Moreover, parents should be aware that states generally permit for one set of rights to be awarded without mirroring that allocation in the other area. As such, having “joint legal custody” does not compel having equal or shared “physical custody” or parenting time. For purposes of this article, the term “legal decision-making” is used when referring to what most parents know as “legal custody,” as it most fully captures the concept by referring to the bundle of rights and responsibilities that accompany decision-making authority, while jettisoning the often unhelpful word “custody,” which still retains too much identification with physical possession, control, and parenting time.
Definitionally, then, legal decision-making refers to the right of a parent to make a determination regarding one or more significant issues, as well as his or her responsibilities relative to those significant issues. The word “significant” is a critical adjective to use when referring to legal decision-making because it connotes an allocation of rights in areas that are generally seen as the most important to the rearing of a child. Traditionally, legal decision-making addresses itself to the rights and responsibilities associated with educational issues, religious issues, medical and mental health issues, and issues related to extracurricular, athletic, artistic, and other activities. Legal decision-making does not typically address the myriad of daily and quotidian decisions that relate to one’s children. For example, whether a child plays contact football will be a significant decision in the extracurricular arena (and possibly other arenas as well), but the decision of whether a child takes water or Gatorade to practice is not. Daily decisions made during the physical possession of a child are typically not decisions subject to an award of legal decision-making. However, it is important for parents to know that the lines here are not entirely well defined and exact. Like “custody” itself, there is a spectrum along which a seemingly perfunctory daily decision can implicate or bleed into a significant decision where the legal allocation of rights and responsibilities is relevant. Increasingly, these often challenging intersections are observed where the identity (racial, gender, or other) of a minor child is being navigated. Moreover, it is generally the case that even when an issue that involves one of the significant decision-making rights is involved, in the event of a true and actual emergency, the parent who is in physical possession of the child and exercising her or his allocated parenting time will be able to make the time-sensitive and critical decision, notwithstanding the award of legal decision-making.
Even an award of shared or joint legal decision-making does not fully outline with full accuracy and precision what the contours of that right entail. In some states, for example, two parents can have “joint decision-making” on paper via the express written terms of their parenting agreement or custody/allocation judgment, but one parent can have a final say in the event of a dispute. In this particular circumstance, the decision-making being awarded or allocated is, in reality, a form of sole decision-making—despite the terminology being used. In many states the trial court can also identify and specify certain rights that are shared, certain that are exclusive or solely made, and others that are subject to mediation or consultation with a parenting coordinator. In these states, the court can divide areas of decision-making authority in a more flexible fashion and the court can even carve out exceptions to and limitations upon the allocated decision-making authority.
Regardless of the various state-specific considerations that parents should seek to understand, the animating concerns for trial courts across the country are the best interests of the child and the ability of the parents to communicate, consult, and cooperate effectively. As such, where parents are unwilling or unable to communicate, joint or shared legal decision-making often cannot be awarded. However, there are states that permit an award of joint legal decision-making over the objection of one or even both of the parents. In these instances, the courts look beyond the claims and desires of the parents and consider whether, despite their own issues, they can actually confer and make decisions regarding their children. In order to guide their trial courts’ lodestar consideration of “best interests”—most states also provide for enumerated factors that a court must consider. Inevitably, these factors are subject to interpretation and can be somewhat vague. In these states, and those with less robust statutory guidance, the case law of appellate courts have further defined what factors or considerations should guide the trial courts. In the main, where factors are specified, they are intended to be taken into account holistically and without any one specific factor predominating over another.
As should be clear by now, an award of legal decision-making often can take several forms. Familiarity with those forms is something that every parent should endeavor to understand in consultation with her or his attorney. While the laws governing this topic vary from state to state, most courts do not consider parental conduct that does not affect a child’s safety, health, or wellbeing or the parent-child relationship. Another critical piece of information for any parent to know in advance of commencing litigation is what, if any, presumptions exist regarding legal decision-making. Some states begin with a public policy that explicitly states a preference for shared legal decision-making, while others have an express statutory presumption in favor of parents sharing legal decision-making. Other states, however, do not. In addition, any statutory presumptions that might exist must always be considered in light of any specified statutory factors or considerations that negate (or can negate) such presumptions; often domestic violence is such a factor.
With the general contours of legal decision-making established, it is important to explore the areas where decision-making is allocated and what specific issues and considerations can arise in those specific areas.
The right to make decisions relative to a child’s education and schooling is an allocated right that states will award consistent with their particular statutory schema for legal decision-making awards. This right typically entails the right to choose the particular school that a child will attend. It can also, but not always, extend to the right to choose certain academically related services and activities. Preparing for a dispute on educational decision-making should entail a parent gathering a robust chronology of each child’s school attendance. This chronology should also include details regarding the relative involvement of each parent in the selection of the school. Having information regarding grade performance, socialization, and other data points is also critical. Likewise, information regarding each parent’s past involvement in the education of their children is vital. While this includes obvious data such as attendance at teacher and school conferences, it should also encompass details such as assistance with homework, participation in field trips and in-school events, and sourcing tutoring and adjunctive or supplemental academic assistance. In the event that a transition from a public school to a private, boarding or parochial school is sought (or vice versa), parents should have accurate and precise information regarding the differences between the school settings.
In a situation where a custody evaluator is involved in opining on the issue of decision-making relative to educational issues, parents should be mindful of what that evaluator is qualified and not qualified to address. In some circumstances, a dispute over educational decision-making can necessitate utilizing an educational expert. Unlike a forensic psychologist or other mental health professional, an educational expert is someone specifically qualified to address certain issues in the academic and educational setting. Whether such an expert is necessary or advisable in a case is a topic for each parent to explore with her or his attorney, who will have a jurisdiction-specific and informed view on the matter.
The right to make decisions regarding extracurriculars, sports, and activities is a second right typically specified for allocation in a litigated context. A parent preparing for litigation should be able to describe the chronology of each child’s involvement in particular sports, activities and extracurriculars. While having a timeline of participation is necessary, it is not sufficient. Parents should also be able to inform their attorney and other case-related professionals relative to their own (and the other parent’s) involvement in the selection of the activity; participation in transportation to the activity; attendance at practices, games, events, and recitals; any coaching, mentoring, leadership, or teaching involvement in the activity; and any observations of the child’s reaction to participation, as well as observations of how the child’s participation affected any other areas of the child’s life, such as grades in school, socialization, and mental health. Having both a particular set of data points, as well as an organic and holistic understanding of how those data points fit within the context of the child’s life, will be useful for the professionals involved in the case, and also will demonstrate a degree of thoughtfulness and nuanced consideration by the parent, who can expound on those topics with accuracy, precision, and awareness.
Another critical consideration is for parents to have a complete, accurate, and precise understanding of how an extracurricular activity fits within (and may potentially interfere with) agreed or allocated parenting time. Importantly, the right of one or both parents to make legal decisions relative to extracurriculars also brings with it a challenge because that right can, and often does, intersect with parenting time. In some instances, the selection and scheduling of activities can be fraught because one parent perceives the other as selecting or scheduling activities on his or her “time”—thereby depriving that parent of time with the child. In other instances, one parent may wish to have activities occur on his or her time in order to watch and/or participate. In any scenario, it is advisable to look at the historic timing of child extracurricular activities to see how those may fit into a future temporary or permanent parenting schedule. Also, where activities have been added, changed, modified, or altered amid pending litigation, knowing these details will assist parents’ lawyers in analyzing whether extracurriculars are being “weaponized” against the other party’s parenting schedule.
In some unique circumstances, experts can be involved on this topic as well. Here, as with other issues explored below, there can be an intersection between allocated decision-making rights, as well as other considerations. For example, is an activity sponsored and conducted by a religious body part of the awarded rights in extracurriculars/activities, or does it fall within the rubric of religious decision-making? The answer can vary. Moreover, choices relative to sports, activities, and extracurriculars can and do intersect with identity issues and issues of racial, ethnic, and cultural considerations. In some circumstances, the choice of certain sports that are perceived by some to be risky can also touch upon considerations that also may have relevance for the award of decision-making relative to medical and health care issues.
The right to make legal decisions relative to religious upbringing is another specified right that is allocated to one or both parents. As with other awards of legal decision-making, a trial court will look at evidence of past conduct and any prior agreements of the parents. As with education and extracurriculars, the chronology of data points will be useful for a parent involved in litigation on this topic. In what faith or practice were the parents reared, if any? If the parents were married, in what faith or practice did that occur? What were the religious or spiritual practices of the parents prior to having children? How did the parents approach religious and spiritual issues once the child was born? If there is some degree of participation by the child in sacraments or rituals, these facts should also be demonstrated.
In certain jurisdictions, a trial court will not allocate any aspect of religious upbringing where there is insufficient evidence of a prior course of conduct regarding religion for the child or the parents did not previously have an agreement, either expressly or impliedly, to rear the child within a particular religious/spiritual system. Many times, where religion is a disputed issue in litigation, the disagreement relates to a disagreement over the level of orthopraxy in compliance with laws, rules, and norms of a particular faith. In such instances, facts detailing the prior course of conduct can be very important.
The right to make non-emergency decisions regarding significant medical, psychological and health care issues is another primary decision-making right awarded in litigation of child-related cases. The right often includes authority to select treating professionals, to approve or disapprove of elective, non-emergency surgeries and treatments, and the right to approve or disapprove of non-emergency pharmaceutical interventions. It is important for parents to understand that the right to make medical decisions can sometimes implicate, and be implicated by, other legal decision-making rights such as religion. For example, there are numerous instances where the religious and spiritual practices of certain peoples have particular norms, rules, and approaches to medical, psychological, and other care. In addition, depending upon the race, ethnicity, and cultural background of the parents, there may be particular intersections that are relevant for the legal and other professionals involved in a case to be cognizant of and to take into account. As with the three areas of decision-making addressed above, a chronology will be important here as well. Having a list of physicians and other providers, an accurate and precise list of conditions for which the child was treated, information regarding the parents’ roles in selection of treaters and treatments and each parent’s involvement in transportation to appointments, attendance at appointments, and facilitation of treatments will be most useful.
In some instances, where a child has a preexisting condition, it will be important for the parent to make the treating professional and her or his records available to any court appointed professional such as a guardian ad litem, child representative, or forensic evaluator. It is also critical to understand that, where there is a forensic evaluator (often referred to as a “custody evaluator”) involved, that professional is limited by his or her own education, training, and experience and may not have the necessary subject-matter competence to grasp certain features of various medical, neuropsychological, psychiatric, or other conditions. A parent, no less than their lawyer, should not feel compelled to simply accept that a PhD in psychology has the competence to address certain issues. As such, it may be advisable to retain experts in specialized fields or to ensure that the forensic evaluator seeks outside assistance on topics beyond their knowledge.
Increasingly, issues of identity intersect with family cases in myriad ways that relate to legal decision-making (and to physical custody as well). It is beyond the scope of this article to address the developing approaches of trial courts to these topics as it is a dynamic process and is highly jurisdiction specific. However, here as above, robust documentation is also vital. It will be important to have a chronology of data points relating to identity issues; how they were addressed; what interventions and approaches were taken; and what each parent’s involvement, objections, or participation were.
The role of qualified, credentialed, and experienced experts can be no less critical. Too often, in this author’s view, poorly or thinly informed guardians ad litem, child representatives, and other professionals attempt to navigate identity issues despite having almost no meaningful subject-matter familiarity beyond some cursory training that is often woefully incomplete. This blind spot can even extend to experienced forensic psychologists, at times. It is important, if not essential, for parents of LGBTQ+ children to be cognizant of how identity issues may be approached within the forensic evaluation setting and within the judicial system. Proper investigation of possible court-appointed professionals and evaluators is critical in order to determine whether that person is sufficiently informed of the current state of reliable thinking on these matters.
Often, if not inevitably, identity issues implicate not just legal decision-making concerns such as a choice of therapists, therapies, and treatments, but also daily and routine decisions that are not expressly allocated or awarded by the trial court. In the context of children navigating issues of identity, choices of clothing, hair style, physical appearance, and names and pronouns are also presented. Moreover, the issue broadly raises interesting and still-unsettled questions of where a minor child’s rights to self-determination and confidentiality begin and a parent’s rights end or begin to be less absolute.
Relatedly, where there is a LGBTQ+ parent-litigant (regardless of the sex, gender, or sexual orientation of the child), parents will be well served by understanding how that fact about themselves can impact and influence awards of legal decision-making regarding their children. As with cases involving LGBTQ+ children, contested matters with LGBTQ+ parents should seek qualified, credentialed, and experienced experts, where appropriate, to provide reliable, valid, and objective data. In many litigated settings, the gender identification of a trans parent, for example, often brings with it an explicit and implicit set of challenges relative to contested claims of fitness of that parent to be awarded legal decision-making. An unsavory but still too common way in which this often manifests is through arguments relative to the trans parent’s overall mental health—particularly where the trans parent previously identified in a different manner than at present. Pointedly, even where a trans parent’s status as trans might not come under direct attack or be made a direct point of dispute, it may still be subject to ancillary attack via claims that are ostensibly not driven by sheer prejudice or moral censure. While it is beyond the scope of this primer to address those challenges of LGBTQ+ parents in detail, it is important to highlight the topic so that potential litigants are fully aware of what a contested “custody” case might entail and what one should be prepared to address from the inception of litigation.
Race, ethnicity, and culture also inevitably intersect with legal decision-making in a number of ways that might not seem immediately apparent. As with sexual orientation and gender-identity issues, it is critical for parents to understand that the legal professionals involved in child-related litigation may have little to no meaningful knowledge of the norms, customs, habits, and folkways of other races, ethnicities, or cultures. This observation is not an indictment of these legal professionals any more than it would be to observe the same of many lay people who are not familiar with the rules, norms, and customs of the judicial system or within family law. But knowing this fact means that parents must be prepared to identify, explain, and assist others in understanding.
Although there has been some degree of growth in the diversity of guardians ad litem, child’s representatives, amicus attorneys, and other court-appointed roles, it remains the case that the general pool of professionals who can serve in those roles often does not include sufficient numbers to reflect the range of diversity of people who interact with the judicial system in a family law matter. This in no way suggests, for example, that an upper-middle-class white attorney with no children cannot adequately serve the best interests of BIPOC children and their parents. But where racial, ethnic, and other cultural considerations are involved, it can be helpful to have professionals with more than the “sensitivity” that comes from a brief seminar or training. As such, parents should feel comfortable in seeking out professionals who have the ability to fully understand the parental and child context from a racial/ethnic/cultural perspective. One could go so far as to assert that parents have an obligation to make their counsel and other professionals aware of how their own racial, ethnic, or cultural contexts might have relevance to disputed custody issues. Likewise, when vetting potential counsel, parents should be wary of attorneys and other professionals who ignore or minimize these issues when presented. In the absence of the suggested diligence, parents run the risk of having issues be analyzed and opined upon through a lens that privileges the assumptions, approaches, and biases of others.
As explored briefly above, litigation relative to legal decision-making is often both legally and factually complex. In addition to seeking thoughtful counsel from qualified and experienced counsel, parents should also be prepared to educate the professionals involved in their case to no less an extent than they are willing to be educated on the law by those same professionals. A legal dispute regarding children will only and ever provide a snapshot of the lives of the parents and children who are involved. It is tempting for all of us, in a frenetically paced modern world marked by complexity, to want to outsource or rely heavily upon perceived “experts.” While a lawyer, judge, or forensic psychologist may have expertise within the narrow confines of their professions, they are not experts with respect to the many unique factors involved in a child-related case where legal decision-making is implicated.
As an experienced child custody litigator, this author has seen too many instances where the family law system made decisions regarding topics that it was not qualified to make or that imported the court’s own preferences. This is why it is vital to be an active participant in one’s case and to make sure that one’s counsel and other professionals have relevant experience and strong qualifications, that they have been provided significant information and data by the parent, and that any specialized or unique considerations are being addressed by rigorously qualified professionals who can situate those considerations for the court in an appropriate manner.
