We continue our exploration of child custody matters with a review of custody terms.  We start with “Legal Custody.”  Legal custody is the authority of a parent to make decisions for their child.  These include, but are not limited to, decisions regarding the child’s education, religion, medical care, discipline and place of residence.

Legal custody comes in two flavors.  First is joint legal custody.  This is the preferred arrangement.  Joint legal custody means that both parents have decision making authority for their child.  This requires the parties to be able to communicate effectively and cooperate with each other with respect to matters concerning their child.  They do not have to like each other or even deal with each other face to face to be able to exercise joint legal custody.  They just need to be able to put aside their differences and cooperate to make the best decisions they can for their child.

The second flavor is sole legal custody.  This means that one parent has sole or exclusive decision making authority for their child.  This is appropriate in situations where the parties cannot cooperate or communicate effectively.  In such a circumstance, the parent with whom the child resides will have exclusive decision making authority.  The other parent is disenfranchised.

Joint legal custody involves the joint decision making by both parents with respect to the matter of their child’s education, medical treatment, religion and discipline.  It envisions a working relationship between parents similar to that which “parents have with each other and their child in familial situations not interrupted by separation or divorce.”

New York State does not have statutory presumption or preference favoring joint legal custody of children.  Nevertheless, most New York trial judges prefer joint custody and will award joint custody unless the evidence shows that joint custody will not work.  In 1978 the Court of Appeals sanctioned the concept of joint legal custody for stable parents who can cooperate.  Through case law the concept of joint legal custody has evolved over the past four decades and now is the norm, rather than the exception.

Joint legal custody does not require, nor does it imply, joint residential custody of children.  However, in order to have joint residential custody of children, or split residential custody, joint legal custody would appear to be a pre-requisite.

Joint legal custody requires the ongoing cooperation of parents.  Sometimes this is very difficult for people to do when they are divorcing.  It is important to consider what will be the dynamics between the parties once the painful process of divorce is done.  Parents, who can be civilized and cooperate with each other at the worst point in time, most likely will be able to succeed with joint legal custody as an ongoing arrangement.  And just because parents are not getting along while they are divorcing does not mean that they are doomed to continue this pattern to the preclusion of joint legal custody.

Generally, courts will not impose joint legal custody where there is evidence that the parties were unable to work together to resolve issues pertaining to their children.  If parents have a history of disagreeing on schooling, religion, medical treatment, vacations, and extracurricular activities, joint legal custody probably is not going to work and will not be imposed by a court.  In such a situation, sole legal custody to the residential custodian is probably the likely outcome.  In a 1978 case where the Court of Appeals approved joint legal custodial arrangements, the Court specifically noted that joint legal custody may not be appropriate in every case and that as “a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, (joint legal custody) can only enhance familial chaos.”

Joint custody is in no way tied to the geographic distance between the parties.  Telephones made the world small enough that parents can speak to each other at any distance to deal with decision making for their children.  In this age of email, text messages and other forms of instant messaging, it is easier than ever for parents to communicate with each other and share information.  Courts have awarded joint legal custody where one parent lives in New York and the other in Alaska where the parties were cooperative and civil.  Likewise, parties can live in the same town or even next door to each other, but if they are unable to cooperate and be civil enough to each other to make joint decisions, sole legal custody may be appropriate.