Why not divide up legal custody?

Posted Saturday, February 27th, 2016 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Deciding who will have legal custody–final decision making authority for a child–can be one of the more contentious issues in custody cases. Often one parent wants final decision making authority to “validate” his or her superior parenting. More often, and not mutually exclusive with the desire for validation, one parent wants the right to control the child. While physical custody can be finessed by giving the parents a more equal allocation of time, ultimately someone needs to have the right to make decisions concerning a child’s educational, medical, religious, and extracurricular activities (or even on issues like haircuts and piercings).

The common methods of finessing legal custody are often ineffective. Requiring both parents to agree on custodial decisions can succeed when both parents are actually able to work together to determine the child’s best interests. However, entering an agreement that gives both parents veto power over decisions when they cannot cooperatively parent, out of a desire to avoid further litigation, allows the more obstreperous parent unwarranted power. I have seen parents refuse to agree to a child’s reasonable desires–such as participating in an extracurricular activity or applying to a magnet/charter school–in an attempt to extract concessions from the other parent. Further there are times when a decision simply needs to be made: as when a child needs to change schools or pediatricians. Giving a disagreeable parent veto power over such decisions is an invitation to gridlock.

In theory, a joint-custodial parent confronted with a parent who misuses his or her legal custody rights could petition the court to modify legal custody. In practice, many parents lack the financial or emotional resources to litigate this issue. Further, at least until a guardian is appointed and begins investigation, such cases can become a he said/she said battle in which the court simply defers changing legal custody because it is unable to determine which parent is causing the problem.

Another common method of finessing the issue is having an arbitrator make the decision when the parties cannot agree. Again, when the parents are mostly able to cooperatively parent, the safety valve of a third-party final decision maker can be a workable resolution to each parents’ desire to not be secondary. However, when the parties cannot cooperate, placing this authority with a third-party simply gives power to the obstreperous parent. Arbitrators are a financial burden and their decisions are not instantaneous. Many legal decisions for a child need to be made more quickly than arbitrators are able to proceed. I have seen children lose educational or extracurricular opportunities because an inflexible parent invoked an arbitration provision.

A solution that can resolve the legal custody conundrum while avoiding the problems noted above is to divide legal decision making authority for the child. Often one parent is highly invested in one or two aspects of a child’s life. Giving that parent final decision making authority on those issues, and the other parent final decision making authority on other issues, can resolve legal custody without leaving the parents feeling like there has been a “winner” and “loser.”

Typically it is the parent who will not have primary physical custody who wants primary legal custody on one or two issues. Sometimes a parent is willing to fund private school for the child if that parent can have final educational decision making authority. Other times a parent is much more highly educated and is concerned the other parent will not make the best educational decisions for the child. Or that parent may be heavily invested in religion and wants to insure the child gets a thorough, and particular, religious training. Or that parent may be actively involved with the child in some sporting or artistic endeavor. Giving that parent final decision making authority over education, or the right to oversee the child’s religious instruction, or the right to have the child participate in a particular sporting or artistic activity, can help the parties resolve the legal custody issue. I have settled many legal custody disputes by giving each parent final decision making authority on specific issues rather than giving both parents joint control on all issues.

When primary legal custody is being disputed between two actively involved parents merely so that one parent can feel victorious over the other parent, divided legal custody won’t satisfy. However, I’ve encountered few (perhaps no) parents willing to go through the expense and stress of trial merely to achieve such victory. More often, legal custody disputes between two actively involved parents are battles for control of the child. In these circumstances dividing control, rather than having joint control, may be the more effective solution.

9 thoughts on Why not divide up legal custody?

  1. Amen. This (split decision making) is one of my favorite log jam breakers during mediation and/or contentious co-parenting sessions. My least favorite co-parenting situation is joint custody with joint decision making among arguing parents. I have been in more than one situation where a parent has said “no” solely because s/he can.

    1. Gorilla says:

      To all, i must ask… How many arbitrations or mediations have you been part of? I’m curious.

      What’s the best and worst you’ve seen (no names of course). Any hints from your view? Any advice?

  2. David DeVane says:

    I agree with Helen. I have used this division of decision making successfully in both as a mediator and in my own cases.

  3. This can be an excellent option for many parents moving forth into co-parenting their children, especially if it can play to the strengths of one or both parents — Mom’s a doctor and dad’s a tenured college professor? Perhaps decision-making on medical and educatonal issues can be divided accordingly.

  4. Joe Mendelsohn says:

    Greg,this maybe the best of your commentaries, in a long time or throughout the column.

    Great stuff.


  5. Jill HaLevi says:

    The other implicit benefit is that – even if parents are getting along great when they make the parenting plan – this protects parents when one parent later becomes unreasonable, because the power to obstruct is mutual, thus encouraging discussion and compromise even when parents are no longer on great terms with one another.

  6. Thanks for the trip down memory lane.

    1. That was one of the first cases I did this on. Worked, didn’t it?

  7. Many legal decisions for a child need to be made more quickly than arbitrators are able to proceed. Clay Serenbetz

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