When a divorce involves minor children, there are two custody “labels” that need to be determined: legal custody and physical custody.  If the parents can agree on the labels themselves, the court won’t need to decide for them.

Legal custody refers to the right and responsibility to make decisions related to the health, education and welfare of the children.  It can either be “joint” (shared) or “sole” (with one parent only).  Joint legal custody is common.  Generally speaking it is preferred since it implies both parents will be actively involved when it comes to the well-being of the children.

Legal custody has nothing to do with the living arrangements for the children or the amount of time they will spend with each parent.  It is simply relevant to decision making.  It also doesn’t affect day-to-day routine decision making on minor matters.  It is assumed that these minor decisions will be made by the parent who has physical care of the children at the time.

Examples of legal custody decision making include choice of health care professionals, whether or not to get braces, whether a child should have counseling, which school to attend and whether the child is allowed to take up a dangerous sport.

Does joint legal custody mean we must agree?

It is a common misunderstanding that joint legal custody means the parents must come to agreement on each major decision.  What it actually means is that each parent has the right (individually) to make these decisions.  If there are some of these types of decisions that the parents want to be sure are made only by joint agreement, such as whether a child should have elective surgery, they should be spelled out in the divorce agreement.  You can also specify which parent is to make which types of major decisions.  Joint legal custody does imply that certain governmental services for the children such as obtaining a passport can only be obtained with the signature of both parents.

The most common argument for sole legal custody is when the other parent does not seem to be fit as evidenced by mental impairment, addiction, history of abuse or lack of interest.  A parent with no legal custody has limitations with respect to their involvement in their child’s public school education, such as not being able to participate in the development of an IEP (Individualized Education Program).  However access to records and information pertaining to a child, including medical, dental, and school records, cannot legally be denied to a parent for the reason that the parent does not have legal custody.

Once legal custody has been established as part of a final divorce order, it can be changed if the parents agree and notify the court.  If however they can’t agree, the parent requesting such a change from the court must show that there has been a significant change of circumstances affecting the children, before the court will consider the request.