What is legal custody and why should I care?

While one of the most difficult situations in the break-up of any relationship is how to decide when and how the children will spend time with each parent, another difficulty can be the reconciliation of different parental views when it comes to making decisions for the children. The law provides for two types of custody, Legal and Physical.  Legal custody is defined primarily in Family Code Sections 3003 and 3006 (Joint legal custody and sole legal custody respectively) and concerns who makes decisions for the children, including  ones for  basic issues as when will the children go to bed and can they go over to a specific friend’s house, to more impactful issues, such as which school will they attend, and how will medical decisions (including vaccinations) be handled.  In California, most Family Courts will lean toward a “joint legal custody” order.  Such orders require the parents to discuss issues in an attempt to come to an agreement.  As is the case with many legal concepts (although it may not always seem like it) the concept of reasonableness goes a long way in determining what you can and cannot, or should and should not, do.  In  general, for simple issues, such as will the  child watch a movie or go to bed, the parent who has the physical custody of the child at the time simply decides.  Generally, no specific consultation with the other parent is required;  however, the devil is in the details as they say. Decisions that are likely to impact the child or cause the other parent concern, even on seemingly smaller issues, should be discussed with the other parent.   While consulting the other parent on large issues, such as for example, deciding to seek counseling services for your child, is important, so would be the decision to allow a young child to watch an “R” rated movie.

For particularly tricky issues, such as where will the child go to school, or should a child have a certain medical procedure, the Courts may have to weigh in and decide the issue.  Usually this is accomplished by a parent filing a motion with the Court to address the issue.  Most motions are heard a month or more after filing, so early action on the issue may be necessary.  Depending on how immediate the need is for a decision, a person can always ask for an emergency or ex-parte  order.  However, Judges often view these motions very critically, so proper pleading is a must.

Here at the the Law Office of Michael N. McCallum, p.c., our attorneys have dealt with numerous legal custody issues and can advise you about the best way to deal with your issue, whether that be through negotiation, a motion, or something else.  As always, the sooner you know there is an issue, the better it is to consult with an attorney.