In today’s blended society, it is common for parents to have different religious beliefs and practices. However, if they both feel strongly about their religion and divorce, a war can erupt over how the children are raised at and after divorce. This is where the concept of legal custody comes in. On divorce or in paternity cases, the court can award joint legal custody. Legal custody covers decisions about the children’s medical care, religious upbringing, and educational training. Legal custody then has nothing to do with which parent will receive physical custody and the other parent parenting time. This blog discusses legal custody and answers the question of what occurs if parents disagree, such as over religion.
To decide legal custody, the court must consider if the parties have agreed to joint legal custody. In addition, the court considers the following considerations: (1) the fitness and stability of each of the persons awarded joint custody; (2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare; (3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age; (4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody; (5) whether the persons awarded joint custody live in close proximity to each other and plan to continue to do so; and (6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.1
Presupposing the court finds that an award of joint legal custody is proper under this analysis, what happens when the parents come to a fundamental disagreement? To go to court or address this before it becomes an issue. For instance, one parent wants the children to attend public schools versus private schools. This is legal custody as it relates to educational decisions. This type of dispute is common. On occasion, a parent strongly believes childhood immunizations are connected to autism and refuses vaccinations, while the other parent totally disagrees and believes the child should be vaccinated. This is legal custody as it relates to medical decisions. A different problem is if the parents have strong views about religion that differ and one demands the children be raised Catholic and the other Baptist. Is this or would this be your case on divorce?
If you are contemplating divorce and believe these are non-issues for the parties, agreeing to joint legal custody puts you one step closer to your divorce. If you are in a divorce and do not agree, then you should work with your counsel to seek sole legal custody and present the necessary evidence to do so. That said, it is not uncommon for one parent to have sole medical decision making, the other educational authority, with both sharing medical decisions or some variation of sole and joint. The trial court has the authority to divvy out legal custody if it is in the child’s best interests in considering the foregoing statutory factors.
Furthermore, if your divorce is completed and you have joint custody or sole custody or some portion thereof, please remember child-related issues, including legal custody, are always modifiable if you can demonstrate a substantial change in circumstances and the modification is in the children’s best interests. This may be the way to resolve a perpetual conflict about religion, school or medical care. Nevertheless, the court will not just award joint legal custody, sole legal custody, or divvy up legal custody if you do not present the necessary evidence, and on modification, meet your burden of proof. This is where a skilled lawyer helps you pull together the evidence to make your case. There are many ways to do so. For example, if a given set of parents get into a heated dispute about the propriety of childhood shots, the doctor may be called as a witness to testify about who was making the scene and the efficacy of childhood immunizations. Thus, legal custody is a flexible term that can be decided or modified in many ways by the court during the children’s minority if you put on the necessary evidence. Remember legal custody has nothing to do with physical custody (where the child will sleep more nights during the year) and parenting time.
This blog was written by attorneys at Dixon & Moseley, P.C. who handle complex domestic cases of all types throughout the state. This blog is intended to provide general educational material to the public at large so they can be more engaged participants in the legal system. This blog is not intended to provide advice for a specific legal matter nor is it a solicitation for services. This blog is an advertisement.