The Post-Divorce-Parenting Glossary

• What is joint legal custody?
• Does the primary custodial parent have legal custody?
• How has custody changed over time?
• What are the benefits of joint custody?
• What are disadvantages of joint legal custody?
• How do divorced or separated parents establish joint legal custody?
• Does joint legal custody mean parents have to agree on every major decision regarding our child?
• What do you do if you disagree with your ex spouse regarding your child's care under a a joint legal custody arrangement?
• Can the parent with primary physical custody move to a different place with the child when their is joint legal custody?

What is joint legal custody?

Joint legal custody is the legal term used to describe both parents sharing the responsibility of making long-term decisions for the children, after a divorce or separation. Joint legal custody means that the major decisions about the child's life, must be discussed and worked out by both parents.  These major decisions may include education, health and dental care, emergency care, religious practices, and extracurricular activities.

The term joint legal custody is derived from two different terms: 1) joint custody, and 2) legal custody.  Legal custody is the compnent of child custody gives a parent all the rights to make decisions about the child's upbringing. But when "joint" legal custody is ordered in the divorce decree or separation agreement, that decision-making authority is shared equally between the two parents, just as if they were still married.

Does the primary custodial parent have legal custody?

If joint legal custody is ordered, both the custodial parent and noncustodial parent have the very same legal custody rights.  The primary custodial parent has no more decision-making authority than the noncustodial parent.

It is very common to misunderstand this, because divorced parents might not understand the difference between physical custody and legal custody.  Physical custody addresses where the child lives.  Legal custody address the long-term decision about the child.

Having joint legal custody can put a lot of pressure on the custodial parent, because they are obligated to consult and collaborate with the noncustodial parent about all big decisions.  For example, if the custodial parent wants the children to go to church, but the noncustodial parent is an atheist, they must work to find a way of collaborating on the issue.  This can be an extraordinary challenge; if both parents are unwavering, conflict can emerge.

How has custody changed over time?

Statistics gathered in 1997 about joint legal custody from nineteen U.S. states found that joint legal custody is awarded in two out of every ten divorce cases involving children.  More than seventy percent of all custody cases result in the mother receiving primary custody of the child(ren). Less than ten percent of all child custody cases result in primary custody being granted to the father, and joint legal custody would rarely be awarded.  With the tender years doctrine, the courts adhered to the philosophy that during a child’s early years (the "tender years") it was more beneficial for them to be with their mother. Over time, the tender years doctrine began to be replaced by the best interests of the child standard.

Today, joint legal custody is very common in child custody cases, and typically a family court will award joint legal custody, unless there is a major reason that one parent should not be involved in the decsion-making process.

What are the benefits of joint custody?

Suited for co-parenting
While not as ideal as a traditional nuclear family, there are significant advantages to joint legal custody. Joint legal custody works very well if the partners are able to co-parent.  Co-parenting expects both of the parents to communicate about the children after the divorce.  This tends to be much more beneficial to the children and their relationship with both parents as the children grow into adulthood.

Two perspectives
No matter how entrenched we are about certain issues, our perspective is likely flawed in some way.  Having two parents discuss and compromise on legal custody questions typically makes the ultimate decision better than if just one parent acted unilaterally.

Teaches conflict management
Parents must learn to compromise on their differences and work together. This teaches the children how to properly address conflict in their own lives.  If done correctly, this lesson could be one of the most valuable lessons that children can learn after a divorce.

What are disadvantages of joint legal custody?

Because joint legal custody requires that parents collaborate around significant decisions regarding their children's welfare, disagreements can result in conflict.  If parents become too entrenched on certain decisions, they could find themselves in a situation where no good decision is made, and the end up in a high-conflict parenting situation.

Often, parallel parenting is necessary if the parents are unable to resolve conflict.

How do divorced or separated parents establish joint legal custody?

Decisions about the terms of joint legal custody can be handled in a few ways. Most often they are handled during mediations. Mediation dealings involve a neutral third party whose purpose is to facilitate issues that may delay child-custody cases.

A divorce attorney who can ensure that their interests are protected and maximized, may be retained during mediation. Through mediations, a parenting plan is developed which details the stipulations of joint legal custody.

Does joint legal custody mean parents have to agree on every major decision regarding our child?

Inherent within the concept of joint legal custody is the expectation by the court that parents will attempt to collaborate with each other. Parents are expected to consult each other's opinions regarding significant decisions pertaining to their child(ten).

Agreeing on everything is not likely, whether divorced or married; all parents must find ways to compromise and come up with acceptable and agreeable decisions, that are the result of both parents making them.

Often when divorced parents with joint legal custody have disagreement around decisions pertaining to their children they feel they need to modify their custody arrangement; however, a court is very unlikely to remove legal custody from one parent, just because they could not agree on a long-term decision.

What do you do if you disagree with your ex spouse regarding your child’s care under a a joint legal custody arrangement?

Sometimes parents file a complaint and take their ex back to court; however, depending on the situation this may have a negative result both legally and financially.  It is advisable to check the divorce decree to see if a mediation clause exists, requiring both parents to participate in mediation before going to court.  If a mediation clause exists, but the parents go to court first, the judge may simply force the parents to mediate before he or she hears the case.  This can waste time and money, unnecessarily.

While mediation is certainly better than litigation, the best solution to all co-parenting issues is collaboration.  If parents repeatedly approach discussions with your ex with a spirit of collaboration, they are likely to save money that can be used for the children, work out better decisions, and enjoy lower conflict.

Even if just one parent is able to collaborate, research indicates that their ex is more likely to listen and understand their viewpoint. The goal is to try to make room for each other so that they may "meet in the middle" versus becoming polarized.  Divorce counseling, whereby a therapist that specializes in supporting and working with divorced parents can be very helpful.

When divorced parents agree to approach decisions by always considering what is in the child's best interest it can help reduce conflict. The following are common examples of disagreement that affect parents with joint legal custody:

• Where the child is to go to school?
• What religion if any for the child?
• How will a child's health condition be dealt with?
• What activities is child expected to or allowed to participate in?

The following are tips to resolving these decisions:

• Maintain a nonjudgmental attitude;
• Seek out support from a neutral party such as a family therapist or professional mediator;
• Hove both parents writing down a list of pros and cons about the applicable decision;
• Brainstorm (note when brainstorming, ideas are not to be rejected);
• Identify any options that allow for a compromise;
• Consider if both viewpoints can be implemented (i.e. a child might be exposed to two different religions);

Can the parent with primary physical custody move to a different place with the child when their is joint legal custody?

Typically one parent is awarded primary custodial parent when a joint legal custody arrangement is granted. Usually when a primary parent is wanting to move with the child to a different place they file a petition for a move. The other parent usually is then notified, and the court will make a ruling considering the best interest of the child.

When distance becomes a factor, this will affect certain aspects of legal custody.  For example, a parent may not be able to enroll the child in sports or extracurricular activities because it would interfere with visitation.

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