LEGAL CUSTODY: KEEPING IT AND LOSING IT

Much of legal custody writing discusses issues and concerns surrounding Physical Custody. This flavor of custody, Physical, concerns the number of overnights a child spends with each parent. If a child spends more overnights in a month with one parent, that parent has Primary Physical Custody and the other parent has Partial Physical Custody. If custodial time is equal, the parents Share Physical Custody.

Legal Custody, or who makes major decisions regarding a child, is generally shared or equal. However, there are cases where a parent or other custodian can not enjoy decision making authority. In those cases, one parent or custodian will have Sole Legal Custody. One custodian makes all the major decisions regarding a child. These decisions include educational, medical, religious and other major decisions. That, of course, begs the question: Why would a Judge decide that only one parent or custodian can make these decisions? There are several reasons:

Psychological Issues: There are cases where one parent does not have the mental ability to participate in making these decisions. This type of situation would only occur if a parent has provable psychological/psychiatric issues or a condition which prevents that parent from participating in this decision-making.

Failure to cooperate and participate: There are cases, and they are not the norm, where a parent, during a time when a Custody Order indicates that Legal Custody was Shared, completely fails to communicate with the other parent about major decisions and further, advised third parties not to cooperate with the other parent.

Most often we see that type of conduct with schools/day care or with a child’s physician. We concluded a Custody trial in early 2018 where the Father not only refused to communicate and involve Mother in major decisions, he told the child care provider and the medical providers not to speak with or provide information about the child to Mother. Since Father was the Primary Physical Custodian, the day care provider and physician were under the mistaken impression that Father had the power to make those restrictions.

The day care provider testified in the Custody trial that Father had made those  statements. The end result is that Father lost both Primary Physical Custody and Shared Legal Custody of his daughter.

Voluntary Relinquishing this Right: Also, in the odd case, a parent just will not wish to be involved in making these decisions and they will permit the other parent or custodian to make all decisions. In those cases, the remaining parent will have Sole Legal Custody. Having Legal Custody is a privilege to be protected, but it is not guaranteed.

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