Legal Custody is defined in Section 5302 of the Domestic Relations Code as:
The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.
This is very different from Physical Custody, which is defined in the same section as “The actual physical possession and control of a child.”
Often new clients do not understand that in 99.9% of the cases, parents share legal custody. This means that they need to discuss and agree on the major issues for their children. New clients may try to tell me that their estranged spouse is incapable of participating in and/or making sound decisions. My standard reply is to tell them that unless the other parent is a “murderer or an abuser”, it is very unlikely that the client is going to secure sole legal custody through the court. Obviously, my examples are “exaggerated”, but they are illustrative of how difficult it is for one parent to secure the decision making power over the children’s lives.
Issues which come up in this area include:
- What is a “major” decision? Obviously, surgery is “major”. But is the decision as to whether the child plays baseball or lacrosse?
- What if the parents can’t agree? How is the issue going to be decided?
- What happens if one parent take unilateral action?
What may be major to a parent, may not be major to a court. Courts see horrific things most days; do you really want to ask a judge to decide whether a child should be allowed to play a sport or take music lessons. On the other hand, when an issue is a real one, e.g. the need for psychological treatment for a child to which one party refuses to consent, obviously court intervention is going to be necessary.