Navigating the nuances of joint custody between separated or divorced parents and the ways it can impact parents’ decision-making ability as well as their time with their children

When parties with children find themselves in the throes of divorce or paternity proceedings, the term “custody” is thrown around with frequent use, yet few lay persons truly know what the Court and attorneys working with their families actually mean when they say that.  So, what is joint custody?

Simply put, “custody” can be split into two categories: (1) legal custody and (2) physical custody. 

The latter is often referred to as “parenting time” or, more colloquially, “visitation”.  The former concerns decision-making regarding the child.  An easy way to consider the difference can be illustrated as follows: Your neighbor could be providing childcare for your son, which means they would quite literally have “physical custody” of him.  Can your neighbor then authorize elective surgery for him?  No, because your neighbor lacks the legal ability to make health care decisions for him.

In the same vein, though two biological or adoptive parents may still be alive and involved in the child’s life, they may not both seek or even receive joint legal custody.  This is often a result of the parents not being able to cooperate and be on the same page most, if not all, of the time when it comes to making major decisions that impact the best interests of the child.  Sole legal custody would mean that one parent, and that parent alone, has the right to make important decisions on behalf of their child.  Though the other parent may be involved, the parents may agree, or the Court may determine after a trial that only one parent possesses the ability to make major decisions for the child that would operate in the child’s best interest.  This may also be due to the proximity of where the parents live and where the child attends school, has medical doctors, etc.

Where appropriate, the Court may also grant “shared custody” or “joint legal custody”. 

Two foundational tenets of joint custody are the ability of the parties to communicate in their child’s best interests and to involve the other parent in their child’s life.  Not every parent or person wishes to cooperate or communicate healthfully, and a desire to involve the other parent may be lacking (be it from bitterness, frustration, selfishness, or even a history of abuse by that other parent—the reasons may be endless).

The types of important decisions about which parents need to be communicating and cooperating, and to which the Court looks in these circumstances, generally concern medical care, academic, extracurricular, and religious issues.  When parents demonstrate an inability or unwillingness to cooperate in these respects, it negatively affects their ability to be in joint legal custody, as decision-making for the child in/those respects tends to stall or hit a complete stalemate.  Unfortunately, kids’ lives do not occur in a vacuum, and they cannot always afford to wait until the warring parents have either changed their own minds or convinced the other parent of their position before a decision can be made, e.g., whether the child changes schools or starts on a new medication regimen.

When parents have share legal custody, or “joint custody”, there can even be two “versions” of that.  True, or “pure”, joint custody means that the parents have completely equal say in the matters affecting their children, and neither parent’s rights are superior to the other.  This is the ideal situation, but not one that all families have the luxury of enjoying, because they may hit an impasse, and the parties cannot get past that point.  Often, though, when parties are in true joint custody, there is a mediation or parenting coordination clause.  (Check back for further blogs on these topics in more detail.)  This allows there to be a “tie-breaker” so that the parents are not “stuck” without decision-making ability or the requirement to go back to Court simply to get a resolution.  (This is particularly true if the issue to be decided is important to the parties or the child, even just “in the moment”, but when juxtaposed against the cost and time to go to Court over it, it may seem trivial.)  Typically, the costs of a mediator or parenting coordinator are split equally, subject to allocation in the event there is a “bad actor” who deserves to bear the brunt of the costs.

The other “version” of joint custody is what is called “joint custody with a primary decision maker.”  I lovingly refer to this as “glorified sole custody.”  This is because, if the parties are in joint custody and find themselves at that impasse noted above, they cannot always afford or desire to take their matter to a mediator or parenting coordinator, so the ultimate decision is left to the parent who is labeled the “primary decision maker” and who has what we call the “final decision-making authority”.  Therefore, it differs from sole custody in that the parent with the final decision-making authority is still obligated to confer with the other parent and [genuinely] attempt to concur on whatever issue is before them at that time.  In the event that an abuse of that authority is found to be occurring, the Court may completely shift custody to the other parent (including awarding them sole custody).  In addition, there is no statutory authority for this type of joint custody, but our case law has adopted it, so to speak, as an operation of law, based on what parties and Courts are actually doing.

Regardless of the type of custody arrangement parents are in, it does not bare any weight on where the child lives the majority of the time.  Both parents could equally share physical custody, but one parent may have sole legal custody.  The parents may have joint legal custody of the child, but one parent may have a greater number of “overnights” with that child during the year.  Thus, it is important not to confuse sole physical custody or joint physical custody—i.e., “parenting time or visitation”—with the legal custody arrangement in place.  The parents’ parenting plan will give them guidance on how to be in a joint custodial arrangement, regardless of how the amount of time with the child is divided.

To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964, emailing clientservices@wblaws.com, or visiting us here.

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