Often custody litigants say things like “I want custody” or “I don’t want him/her to have custody”. What most people do not realize is that there are two different types of custody: Legal Custody and Physical Custody.
Today I will discuss only the concept of Legal Custody, which involves issues regarding decision making for the minor child/children. These issues can include everything from where the child/children go to school to which physician’s they see. In California, for instance, there is a form that is used for determining which aspects of “legal custody” are to be shared between the parents. The language of the form [FL-341(E)] is as follows:
“2. In exercising joint legal custody, the parents will share in the responsibility and confer in good faith on matters concerning the health, education, and welfare of the children. The parents must confer in making decisions on the following matters:
a. Enrollment in or leaving a particular private or public school or daycare center
b. Participation in particular religious activities or institutions
c. Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy
d. Selection of a doctor, dentist, or other health professional (except in emergency situations)
e. Participation in extracurricular activities
f. Out-of-country or out-of-state travel
g. Other (specify):
In all other matters in exercising joint legal custody, the parents may act alone, as long as the action does not conflict with any orders concerning the physical custody of the children.
3. If a parent does not obtain the required consent of the other parent to the decisions checked in item 2:
a. He or she may be subject to civil or criminal penalties.
b. The court may change the legal and physical custody of the minor children.
c. Other consequences (specify):
4. Special decision-making designation
a. The petitioner respondent will be responsible for making decisions regarding the following issues (specify):
b. Each parent will have access to the children’s school, medical, and dental records and the right to consult with professionals who are providing services to the children.
5. Health-care notification
a. Each parent must notify the other of the name and address of each health practitioner who examines or treats the children; such notification must be made within (specify number): days of the commencement of the first such treatment or examination.
b. Each parent is authorized to take any and all actions necessary to protect the health and welfare of the children, including but not limited to consent to emergency surgical procedures or treatment. The parent authorizing such emergency treatment must notify the other parent as soon as possible of the emergency situation and of all procedures or treatment administered to the children.
c. Both parents are required to administer any prescribed medications for the children.
6. School notification. Each parent will be designated as a person the children’s school will contact in the event of an emergency.
7. Name. Neither parent will change the last name of the children or have a different name used on the children’s medical, school, or other records without the written consent of the other parent.
8. Other:”
This list is, of course, not conclusive, but is merely designed to give the litigants some structure as to what information can and must be shared, and what decisions can be made individually or jointly. If the parents know what is expected, it is often less disruptive to the children and, therefore, less destructive to the relationship between the children and each parent.
