What is Joint Legal Custody?
There are two basic kinds of custody: legal custody and physical custody. Having sole legal custody means that the custodial parent has exclusive decision making authority. Having joint legal custody means that both parents have equal responsibility for decisions, regardless of the amount of time spent with the child.
Legal custody is related to what decisions you as a parent will make on behalf of your child residing in Philadelphia or Montgomery County. Legal custody is just about making decisions and does not have anything to do with the amount of time a parent spends with the child. Parents can exercise joint legal custody even when one parent has sole physical custody.
When a child is conceived or born during a marriage in Pennsylvania, legal custody is automatically joint. Often in separation and divorce, parents will agree to joint legal custody because they can reach an agreement and the large majority of parents are willing and able to communicate and make decisions jointly about their child’s welfare. When parents can do this effectively, joint legal custody can work very well .
If the parents are unable to communicate, joint legal custody may make sense if they are able to compromise and jointly make decisions even when they are unable to directly communicate. There is no obligation to directly communicate with one another.
One example is school related decisions. Parents could agree that they will make decisions involving school matters even if they cannot communicate directly with one another on a daily basis. This is also true about health care decisions when there is a medical emergency. Parents generally agree here that they will make decisions shortly after a medical emergency even if they are unable to communicate with one another.
Education decisions involve the school a child will attend or specific programs that a child may enroll in, such as a vocational school or special education school. This can also include the school district and whether a child will attend public school or a private or parochial school. This can also include a parent’s decision whether a child will receive special educational services from a school district.
What is Physical Custody?
Physical custody means which parent the child will spend the majority of their time with. Physical custody most commonly determines whether one parent will have the child on a full-time basis and the other parent will have the child for parenting time (also commonly referred to as visitation). When parties are unable to agree on a parenting time schedule, the Court will award them a schedule after it conducts an interview with the child, interviews of the parents, and guides the parties through the process of Joint Custody Conferencing. Although the standard used by the Court to determine a parenting time schedule is the best interests of the child, a Court is likely to adopt the parenting time schedule that the parties have been using since separation unless there was an incident of domestic violence or another compelling reason why the old schedule should no longer be utilized. Since the parenting time schedule controls where the child will be living, the Court is concerned about stability and continuity of school, neighborhoods, and relationships with family and friends.
Differences Between Joint Legal and Physical Custody
Key Difference 1: Keeping the Parent Informed and Involved
Joint legal custody is generally a lesser burden on children, since it requires both parents to share in the decision-making process for the child. It also allows the parent who is not residing with the child to participate in all aspects in his/her life and to remain closely involved in the process of parenting their child. In this way, joint legal custody has a marked positive influence on the child, allowing him/her to develop trusting relationships with both parents. Conversely, shared physical custody could place undue burden and pressure on the child.
Key Difference 2: Custodial Parent Relocation
A custodial parent is responsible for exercising physical care over the child and providing for the child’s daily needs. This relationship is important to the child’s well-being and development. When that parent decides to move out of state, the court will consider whether that move is justified or not, and may restrict or prohibit the move or simply award the custodial parent a compensatory pay in lieu of relocation. However, if the parent is not the custodial parent, and that parent decides to move out of state, the non-custodial parent will have no say over whether the move occurs and the non-custodial parent is often forced to continue paying child support without much or any meaningful contact with his/her child.
Key Difference 3: Child Support
A child support order is typically accompanied by a proprietary judgment, which requires the parent to whom child support is awarded (typically the custodial parent) to submit a proposed judgment for the court’s approval. The child support order may include alimony, payment for child care, health insurance coverage and other necessary expenses. The amount of child support is determined by a computer program based on guideline amounts, and is adjusted according to each parent’s responsibilities. Thus, a parent’s income will directly affect the amount of child support he/she receives. If custody of the child is divided equally, then the court may order the parties to pay child support to each other, but the amounts are typically based on a range of guideline amounts, taking into consideration the greater income of the party pursuing the child support order.
The Advantages and Disadvantages of Joint Legal Custody
As with any concept of custody or parenting time, joint legal custody has its advantages and disadvantages. There are, of course, the potential cost savings as you would no longer need to litigate at either parent’s request. Additionally, in theory (and hopefully practice) joint legal custody would lead to a more collaborative relationship between the parents and a reduction in high conflict situations.
The disadvantages are usually those that naturally come to mind – when parents do not get along or a negative co-parenting dynamic exists, joint legal custody can be detrimental to the child. The simplest way to determine which path to pursue is to simply look at where you believe the other parent will most likely end up.
If you have reason to believe that the other parent will seek sole legal custody regardless, even if the parents were to jointly agree to joint legal custody for you and you subsequently obtained it, the other parent could file a motion shortly thereafter seeking sole legal custody. You not only then have to spend additional money on attorney’s fees and court costs but given that you have joint legal custody, you now have some sort of relationship (even if tenuous) with the other parent in terms of any decisions as they would now become joint legal custodian.
Another scenario might be if you are working in some capacity with the other parent with respect to the child. For example, perhaps there are certain physical or medical issues with the child that will require some level of oversight on both parents’ parts. In those cases, perhaps a joint legal custody arrangement makes sense.
Of course, there are plenty of situations where one or both parents do not want to communicate with (or do not communicate well) with each other and therefore, sole legal custody provisions make perfect sense. For instance, I have had cases where the other parent lies about medical treatment, co-morbidities, mental health or related substance abuse issues and in those cases, sole legal custody may be the only way to protect the child (and the custodial parent too).
The Benefits and Pitfalls of Physical Custody
When parents divorce or separate, they often face the difficult decision of how to physically split their time with their children. A divorce assessment can help determine where the child should live, but in many cases, parents have equal periods of physical custody. If you have physical custody, you have the right to have the child reside at your home for designated periods of time.
The benefits of physical custody include providing a child with a stable home environment. It is also beneficial when both parents share the child on equal terms and the court has ordered joint physical custody.
The main drawback of physical custody involves the amount of time a child spends away from a mother or father. Even in equal arrangements, a child must divide his or her time between two homes , which can be both disorienting and disruptive to a routine. This situation is particularly impacting on the nights when a child must transition between homes. A child may have difficulty sleeping at another parent’s house and may be reluctant to leave their home.
A daily routine may also become more difficult to achieve under a physical custody arrangement. Since the child changes where he or she will sleep, it might be hard to adhere to a certain system, such as regular bed or bath times. You may have to make compromises and let your child stay up a little later or become more flexible about your routine.
A physical custody arrangement is not uncommon. In fact, almost 50 percent of children live with both parents for part of the week. However, it takes a strong level of communication to make it work. The parents must be involved in the child’s life and must put aside their resentment in order to make joint physical custody work.
How the Courts Determine Custody
When determining whether to grant joint custody or to award one parent sole custody, the primary factor that courts in Illinois look to is the best interests of the child. As part of the best interests of the child analysis, the courts will consider a number of relevant statutory factors, as well as other relevant facts of the case.
Specifically, the statutory factors include the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to custodial issues. Relatedly, the court can consider the reasonable preference of any of the children, but only if they are twelve years of age or older. The court can also consider the interaction and interrelationships of the child with each parent, siblings and other people who may significantly affect the child. Another factor is the adjustment of the child to his or her home, school and community.
The court will also consider the mental and physical health of all individuals involved. Relatedly, the court will look to the geographical proximity of the parents to each other. In practice, parents often domesticate these statutory factors, by presenting relative information about their parenting capacities at court.
In addition to the statutory factors, the court also has wide discretion to determine which facts are relevant, and what weight to give each factor when determining custody.
Advice for Dealing with Custody Litigation
In the emotionally charged context of child custody disputes, it is essential for parents to engage with the legal process intelligently, focusing on the best interests of their children while ensuring their own rights are adequately protected. Here are some tips to keep in mind when navigating child custody disputes.
Consider Out-of-Court Negotiations
While the thought of reaching an out-of-court child custody agreement may seem too good to be true, the reality is that negotiating a mutual agreement has many benefits. Not only will you save time and fees by avoiding court, but the natural fluidity of your agreement will allow for more flexibility in the immediate future. Additionally, an out-of-court agreement offers parents the opportunity to draw upon the input of an outside expert, such as a family therapist. This service offers parents concrete solutions when needed, and additional emotional support for the parties involved. Finally, the level of intimacy and respect required to successfully negotiate an out-of-court agreement may help to alleviate animosity between the parties , putting them one step closer to a successful co-parenting arrangement.
Work with a Skilled Attorney
Obtaining experienced, compassionate Colorado child custody lawyers is one of the most effective ways to protect your overall legal interests. Even if you are fortunate enough to reach an out-of-court agreement, you should still have an attorney review the documents before you sign. Your attorney will provide critical feedback on the legality of your agreement and address any issues that may arise in the future, should you end up back in court. If you are unable to reach an agreement with your spouse, an experienced child custody attorney will aggressively advocate for your best interests during negotiation and court proceedings. They will also prepare you for what to expect and answer any legal questions about your case. Finally, working with a lawyer gives you access to a number of resources that will ultimately support your side of the case — a benefit you will be glad to have when facing a complicated or contentious dispute.