What Does Legal Custody Mean for Decision-Making?

legal custody

When we speak of “custody,” it can mean a number of things. Generally, child custody is divided up into the categories of “physical custody” and “legal custody.” Physical custody, as most people know, is the parent with whom a child lives; parents often share physical custody, also called “parenting time” in some states. Legal custody refers to the ability to make major decisions affecting a child’s life.

Those decisions typically center around such things as elective surgery and private vs. public education, etc. Legal custody may be shared between parents (joint) or held by one parent (sole). Sole legal custody is usually reserved for situations in which one parent has been abusive or neglectful, has been absent from the child’s life, or lives too far away to maintain a relationship with the child.

In South Carolina, as in many states, courts strongly prefer for parents to have joint legal custody whenever possible. It’s usually best for a child to have two caring parents involved in the decisions that will profoundly affect the child’s life. However, sharing the authority over major decisions requires parents to communicate well and be willing to work together. Sometimes decisions are easy, like deciding what religion to raise a child in when both parents share similar beliefs. Often, however, the process is more challenging.

Issues in Joint Legal Custody

In many states, joint legal custody simply means that parents must share the responsibility of making major decisions. This can lead to an impasse, in which both parents dig in their heels and refuse to compromise.

South Carolina law includes the concept of primary custody and secondary custody. In terms of physical custody, the “primary custodian” is the parent with whom the child lives more of the time. In terms of legal custody, the primary custodian is generally the final decision maker. However, that doesn’t mean that the secondary custodian has no voice in major decisions. The primary custodian has a “duty to consult” in good faith with the secondary custodian.

For instance, parents might agree that their child only has time to devote to one major extracurricular activity, but disagree on which one. The child wants to both play soccer and continue violin lessons. The primary and secondary legal custodians might discuss the relative merits and disadvantages of their preferred activities, and check in with the child to see if the child has a preference. In the end, if the parents cannot reach consensus, the primary legal custodian typically has the final say.

These days, perhaps the most challenging of joint custody decisions are medical ones, such as whether to allow an eligible child to receive a COVID-19 vaccine or whether the child needs to see a therapist. Issues like this highlight the fact that sometimes spheres of decision-making often overlap. A medical decision (vaccines) may affect what school a child can attend. A decision to participate in an extracurricular activity with weekend events could have an impact on a child’s ability to attend religious services. Religious beliefs may dictate what medical treatment a child does or does not receive.

In addition, decisions that fall under the umbrella of joint legal custody can affect other major issues, like child support. Things like private school, music lessons, and religious mission trip participation cost money. How do those expenses get allocated?

Unsurprisingly, many parents who want to have joint custody of their children still struggle to make the decision-making process work.

Resolving Disputes When You Share Joint Legal Custody

If you share joint custody of your child with a co-parent, it is best to consider how you might resolve the inevitable disagreements before specific disputes arise. It is always helpful to try to keep your child’s best interests, rather than your own, top of mind in the decision-making process.

While it is helpful to have a primary custodian to have final decision-making authority, a secondary custodian may be concerned that they will be shut out of major decisions, or perhaps be denied important information about their child. It’s important to know what primary and secondary legal custody really involve. The primary legal custodian may have the right to break a tie, but does not have the right to keep the child’s school, medical, or other important records from the secondary custodian.

What can a secondary legal custodian do if they believe the primary custodian is making bad decisions, or not truly considering their input? It depends. If the secondary custodian believes that the primary is making choices that are truly harmful to the child (like administering an unproven medical treatment they learned about on the internet instead of the treatment advised by the child’s doctor), the secondary may petition the court to take action. Similarly, if the primary legal custodian has repeatedly failed to consult with the secondary as required, legal action may be necessary.

Parents can also agree to mediate a disputed issue before arguing it in court. Mediation of family law issues involves the parties meeting with a neutral third party mediator. The mediator is not a judge, but a person trained to facilitate discussion of issues and options. Mediation seeks to identify “win-win” resolutions, where the child’s best interests are served and each parent can “buy into” the resolution.

If you are struggling with legal custody issues, or want help planning to minimize future disputes, we invite you to contact Brinkley Law Firm to schedule a consultation.

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Since founding Brinkley Law Firm in 2011, attorney Stephanie Brinkley has helped families grow and expand by navigating them through the legal challenges surrounding Assisted Reproduction Technology (ART) and Adoption. As an attorney who focuses on f… Read More
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Originally from Los Angeles, Christopher Kays moved to Charleston in 2007 when he reported to The Citadel for his knob year to study psychology. As a cadet, Christopher volunteered at the VA hospital and helped establish Leadership Day, The Citadel… Read More

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