The Post-Divorce-Parenting Glossary

• What is sole legal custody?
• How is sole legal custody different from sole physical custody?
• Does the primary custodial parent have sole legal custody?
• What are pros and cons of sole legal custody?
• What are the chances that a court will order sole legal custody?
• How does being awarded sole legal custody affect visitation?
• What can happen if I make decisions for a child if I don’t have sole legal custody?

What is sole legal custody?

Sole legal custody is a court order that grants legal authority to one parent, and one parent only, for the right to make major, long-term decisions on a child's behalf.  Decisions that fall under the domain of legal custody include educational decisions, religious upbringing, and health care decisions.

How is sole legal custody different from sole physical custody?

It should be understood that legal custody and physical custody are two very different types of child custody.  A parent with sole physical custody is referred to as the custodial parent.  They have the legal authority to decide where a child will live, although some restrictions might apply depending on the state or if a relocation clause has been signed.  The custodial parent is the one who primarily cares for the child and makes arrangements to ensure they have adequate shelter and a stable environment. Legal custody does not deal with where the child lives, but rather how the child lives.  It is possible, and fairly common, for one parent to have sole physical custody but have joint legal custody.

Does the primary custodial parent have sole legal custody?

The primary custodial parent only applies to the physical custody component of child custody.  Being the custodial parent does not imply anything about how legal custody is applied.  Generally if both parents want legal custody, they will get joint legal custody.  This means they will need to find ways to work together in order to compromise on major decisions that fall under the domain of legal custody.  This can be easy if the divorced or separated parents have similar beliefs and ideas, but if parents have different opinions on how a child should be raised, conflict can result if the parents are not able to communicate and compromise.

What are pros and cons of sole legal custody?

The following are advantages of having legal custody:

You alone get to make major decisions on a child's behalf

A common source of argument can center around religious upbringings.  Sometimes, after a divorce, the parents will diverge in how they wish to introduce religion to their children.  Because religion has always been such a triggering topic, a lot of resentment can result between the parents that have vastly different religious beliefs.

Conflict might be reduced

If the parents are unable to communicate without high-conflict, then having joint legal custody can result in more arguments.  Sole legal custody means that the parent with it does not have to communicate the decisions with the other parent.  This might reduce conflict.

The following are some disadvantages of pursuing sole legal custody:
 

One person's decision is typically not as good as two

Even those with sound judgement can benefit from hearing another person's opinion.  When it comes to children, the two people who are likely to love and care about them more than anyone are their parents.  Having two parents, who each want to do what they think is best for the children, is typically the best way to arrive at the best decisions for the children.

One parent feels left out

In cases where each parent wants to be equally involved in raising the children, but one loses legal custody, that parent is likely to feel left out and resentful.  This can, and often does, lead to more conflict as children grow older.

The children might not think of their parents as "important"

Having two parents as involved in their children's lives as in a nuclear family might not be feasible after a divorce.  Still, children who see both parents as parents might be able to avoid the chances of suffering some of the negative effects of divorce.  When children no longer view a parent as important, they risk becoming estranged and the children might struggle to understand just what type of relationship they are supposed to have with the other parent.

It can result in more litigation

Anything that might result in conflict between parents can lead to litigation, and threatening to take away legal custody from the other parent can do just that.  If the other parent wishes to remain involved in the children's decisions, they are likely to fight for joint legal custody.  Most judges award joint legal custody if each parent wants it.

What are the chances that a court will order sole legal custody?

Assuming a person decides to litigate for sole legal custody, a family court may order it if there is a history of neglect, abuse, or some other activity that makes the other parent unfit.  Assuming that the other parent is not unfit, it depends on the judge and the jurisdiction.  If the jurisdiction has a history of awarding joint legal custody, then the court is likely to order joint legal custody. Assuming joint legal custody is ordered, it is imperative that both parents work to create a parenting plan that they can adhere to so future arguments are reduced or prevented regarding legal custody decisions.

How does being awarded sole legal custody affect visitation?

Legal custody and visitation are two entirely different things, and one does not affect the other, but this does bring up some situations that both the non-custodial parent may want to think about.  Consider a situation where the custodial parent and non-custodial parent have joint legal custody of a child.  Assume the custodial parent wishes to have the child attend church and become Christian, but the non-custodial parent is atheist.  In such a situation, the two parents would need to discuss and compromise on an acceptable solution that both both can live with.  They could agree that the children will attend church when the custodial parent has the children, but not when the non-custodial parent has them, and they can work together to find ways to discuss their differing religious views with their child.

Now consider the same situation, but the custodial parent has sole legal custody.  The difference is the custodial parent is not bound to discuss their plans about attending church with the other parent.  They are allowed to make long-term decisions for the child alone.

That being said, there is nothing the custodial parent can do to prevent the other parent, or anyone else for that matter, in discussing their religious views.  If the non-custodial parent wishes to discuss atheism with their child, they can do so via the 1st Amendment.  By that same logic, if it is the non-custodial parent who is the religious parent and they wish to take their child to church during their visitation, they have a right to do so, unless a court-order prevents it.

This may seem like there is no point to legal custody, and in some scenarios this may be true.  But bare in mind that legal custody might also involve deciding situations like what type of health care or education a child should receive.  If the parent with legal custody wants the children to go to a private, Catholic School, they can decide that for the child.

What can happen if I make decisions for a child if I don’t have sole legal custody?

If you have joint legal custody, you are required to consult and discuss major decisions with the other parent before implementing them.  Failing to do so risks being taken back to court and being found in contempt.  In such a situation, it is possible that a family court could change the court order to give sole legal custody to the other parent.

Again, this is why it is so important to understand the differences between physical custody and legal custody.  Just because a person is the primary custodial parent doesn't mean they are free to make long-term child-related decisions unilaterally.
 

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