Legal custody refers to the parent or parents that have decision-making authority over “major decisions” regarding the child, such as non-emergency medical care, religion, education, and extracurricular activities. When you think of the phrase “legal custody,” replace it with the phrase “decision-making” (e.g., sole decision-making or joint decision-making). Please note that “day-to-day” decisions are made with the parent who has parenting time during that period (e.g., when to brush teeth, when to do homework, when to go to sleep, what clothes to wear, etc.).
Here are the various choices with legal custody:
- Legal custody to one parent
- Legal custody to one parent requiring good faith consultation with the other parent;
- Joint legal custody with the custodial parent having the “tie-breaking” in the case of an impasse;
- Joint legal custody with some way of determining how an impasse will be handled, such as:
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Use of mediation before a “tie-break” can be made;
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Having a third party be consulted before the “tie-break” can be made or have the third party make the decision (e.g., general doctor for nonemergency health, school advisor for education);
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Either consulting with a parent coordinator before a “tie-break” can be made or have the parent coordinator make the decision for the parents like an arbitrator; or
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Spheres of Influence – each parent has decision-making authority for a different area of the child’s life such as medical decisions, religion, education or extracurricular activities. With the spheres of influence, the parent with the decision-making authority may have an obligation to consult with the other parent before making that final decision in their sphere of influence (e.g., Father to have “tie-break” on health and education and Mother to have “tie-break” on religion and extra-curricular activities); and,
5. True joint legal custody requiring mutual consent.
The phrase “joint custody” refers to joint legal custody and is only awarded where the parents can cooperate and make “decisions” together (and communicate with each other in a meaningful way to make those decisions). See e.g., Braiman v. Braiman, 44 N.Y.2d 584 (N.Y. 1978). Because the parents must have a good relationship, courts in New York require consent by both parents. Courts have this position because they feel that parents must be able to get along with each other in order to make decisions together. Therefore, courts usually do not recommend joint legal custody if the parents have an acrimonious relationship or have had a history of domestic violence or family offenses requiring an order of protection. Courts are increasingly recommending spheres of influence so that each parent is meaningfully involved in the decision-making process in their child’s life.
This is an excerpt from my new book “Onward and Upward: Guide for Getting Through New York Divorce & Family Law Issues” available on Amazon, Kindle and iBooks. This is an except from the chapter I wrote with the talented Bonnie Mohr. I also wrote the Chapter on Mediation, which also discusses mediation on disputes like this. Not only am I a family law litigator, but I am also a trained mediator for divorce, child custody and visitation disputes, and commercial mediation. The book is chalk full of great advice on a myriad of family law issues ranging from prenups, child custody disputes, and divorce/annulments. The book’s special sauce is that it has over 48 authors, including many nonlawyer authors, writing on both legal and nonlegal topics. More info on the book can be found here.