Most litigants speak of custody loosely today and take it to mean who has the children, with the other parent getting Indiana Parenting Time Guideline time with the children and paying child support. In other blogs, we have posted materials to differentiate physical custody from legal custody and parenting time.
This blog focuses solely on legal custody as more and more parents have differing life views that come into sharp focus and dispute during marriage and paternity cases—and today marriage and having a child is not generally thought of in absolute terms, “till death do you part.” Or parents until our children are off to college. So what you think, but don’t share, may lead conflict and the demise of the marriage or paternity litigation.
This blog is not merely written for those with children by a paternity action or by marriage and contemplating divorce. Studies have shown marriages and children are ends of and to themselves—people no longer view a marriage partnership as a necessary way to survive. Thus, it may have a fixed concept of life duration going into it having a child or a marriage and having children; and contemplating any significant differences in life views before taking the proverbial “plunge” (marriage or having a child outside of marriage) are wise for your future.
The question is simple: As parents will you agree, disagree, or are and will you be able to make joint decisions about legal custody? Or will these decisions become a battleground as some trial and appellate court have often described it?
To decide, it is important to understand what legal custody encompasses and means: health, education and religious upbringing; these are foundational elements in each adult’s and child’s life. Joint legal decision-making thus has nothing to do with time disputes about the children as might be the case under physical custody issues and Indiana Parenting Time Guideline parenting.
So this begs the question of what the term means and how disagreement may arise. The best way to understand legal custody is by example with the scope and limits of legal custody. This is how the blog moves forward.
With health decision-making, the ordinary disputes are masked in what dentist or pediatrician the children will see to whether parents agree on certain non-mandatory medications. Elective surgery is sometimes also disputed. If there is joint legal custody, and the dispute cannot be resolved, then the parties have to seek court intervention. Staying out of court is the goal of the lawyers who represented the parties as well as the judge.
The outside limit on legal custody—sole or joint—is with emergency medical treatment or surgery. If either parent’s religious beliefs or otherwise (disputing just for the sake of fighting the other parent no matter what is in the child’s best interests) place the child at significant medical risk, the hospital and/or Child Protective Services may intercede and obtain authority for treatment against the wishes of the children (this is beyond the scope of this blog).
The ultimate takeaway from this blog is if you contemplate children or marriage and children of the marriage, and you fundamentally disagree as adults on medical care for yourselves or your future children, this will lead to marital distress and potential divorce and post-divorce litigation, just as with the next two components of legal custody.
In cases where the parents have the financial wherewithal, it is common for heated debates to arise over the educational choice. This is the second type of legal custody. For instance, if a parent went to private schools and believes this provided an educational advantage, it is often the case he or she will seek the same for the children. If the parents disagree for financial or other reasons (such as one not valuing the value of a “better” education itself), this too is an area where there may be heated debates (“fights”) in the relationship that leads to litigation if the parents share joint legal custody.
Anecdotally, in today’s “now” and real-time society, many parents-to-be and married couples have only a faint sense of who the other is and what his or her values may be; these are determined (or should be) in advance of children in the bowels of conflict of the relationship that should forge a strong decision to marry or separate or not have a child–but this is disconnected from today’s society in general.
Closely tied to religion—the third component of legal custody–is the children’s attendance at parochial schools. Since these inherently embody some religious component, a serious debate about religion may also trigger litigation over joint legal custody—from having the judge make the decision to modifying joint legal custody so sole legal custody. Or even dividing sole and joint legal custody between the parents within these three components.
Religion is perhaps an issue domestic attorneys come across less frequently because most parents have some general idea of the other’s views before marriage. In fact, religious practices may have led to the marriage itself and been officiated by a given religion’s head or leader, from a minister, priest, to a rabbi. However, some major US religions, at least by the numbers, such as Catholicism, have children heavily involved in ceremony and doctrine almost from birth, such as the sacrament of baptism in the Catholic church.
The same quandary may present with circumcision. Thus, as with the other aspects of legal custody, these should be considered before marriage or having a child. If not, and the views are strong and diametrically opposed, the litigants may be headed for court and modification of joint legal custody to sole legal custody in one parent in one or all three of these legal custody categories, making a deeper rift between them, more conflict, and lower quality of family life. If not clear by this point, legal custody can be joint or sole in one parent on one or more of these three components.
To wrap up, legal custody does not include other decision making as a general rule, such as a difference in diet between the homes and lax rules versus structure. This is a fundamental right of parents to decide even if they disagree, not the province of the court generally, whose judges mostly steer clear of these disputes. This is not legal custody. We hope this blog helps you in your decisions to have children and understand the boundaries of legal custody. If so, it has met its goal.
This blog post is written by attorneys at Dixon & Moseley, P.C. who handles all types and complexities of domestic cases throughout the state of Indiana, including how to advocate sound sole or joint legal custody arguments and positions and default provisions that do not involve court interventions, where settled in advance. This blog is provided for general educational purposes only and is not a solicitation for services or specific legal advice. This is advertising material.