Legal Custody

Legal custody refers to a parent's decision-making authority regarding a child - for example, decisions regarding the child's education, medical care, or religion. This is a different issue than where the child lives.

Q: What is sole custody vs joint custody?

Sole custody means one parent has the authority to make decisions. Usually, the parent is required to consult with the other parent prior to making a decision. However, this consultation requirement does not really have any teeth to it. In the end, the parent with sole custody can make whatever decision they think is right.

In its pure form, "joint custody" means the parents have to discuss the issue and reach an agreement. If the parents can't reach an agreement, then no decision can be made. In that instance, the parents would have to come to court and ask a judge to make a decision.

In its more modern form, "joint custody" means that the parents would discuss all issues and seek to reach an agreement; however, in the absence of an agreement, one parent would have "final say" over some issues, and the other parent would have "final say" over other issues.

These sets of issues are called "spheres of influence."

Q: What are the spheres of influence?

The main ones are:

  • Educational issues
  • Medical issues
  • Psychological issues
  • Religious training
  • Extra-curricular activities
So, one fairly common outcome is that one parent would have final-say over educational issues. The other parent would have final say over medical and psychological issues and religious training. The parents would divide extra-curricular issues in some fashion (each parent picks one activity; one parent picks activities in the fall and the other in the spring; etc.)

Q: Can a judge order joint custody over the parents' objections?

The court cannot order "pure" joint legal custody following a custody trial. This is the rule emanating from the ancient case of Braiman v. Braiman (1978), which is still good law.

However, litigating custody is a long process. Typically, it will take a year or more to fully litigate custody (often including a forensic evaluation), schedule a trial, prepare, and try the case. During that time, if both parents are reasonably competent individuals, the judge will likely exert significant pressure upon the parties and their attorneys to work out some sort of joint-custody settlement.

Q: OK, but if the case does go to trial, does the wife usually get custody?

The judge will be more interested in the psychological makeup of each parent than which one is the mother and which one is the father.

One major question the judge will want to know about each parent is: is this parent capable of putting the child's needs ahead of his/her own. This may seem obvious, but it is remarkable how many cases are litigated where one parent really does seem to be incapable of separating the child's needs from their own.

And there are cases where the roles become reversed; the child is the parent and the parent is the child, in the sense that the parent becomes dependent upon the child for emotional support.

Note that if one parent ends up being awarded physical custody, the other parent cannot have sole legal custody. A judge attempted to do this a few years ago but was reversed on appeal. However, this rule would not apply to a 50/50 physical custody situation.

If the judge determines that one parent is intentionally alienating the child's affection of the other parent - meaning they are bad-mouthing the other parent, interfering with the other parent's relationship with the child, etc - it is likely that the offending parent will not be awarded either physical or legal custody. Reference may be made to the rather terse decision issued in Bobinski v. Bobinski (2004).