When it comes to the issue of two parents raising a child in a post-divorce situation, there can be a lot of confusion over the rights associated with legal custody. This can be particularly true when the parents share joint legal custody while only one parent maintains primary physical custody of the child.
There are also times when one parent in a joint legal custody situation will violate the rights of the other parent. Sometimes both parents will violate the rights of the other. These violations occur over access to things like school or medical records, or when it comes to notifying the other parent of a permanent move to a new residence.
In some cases these violations are the result of an informal approach to a custody arrangement, while in others, it may result from a parent being intentionally difficult.
This article was written to discuss some of the different terms and concepts associated with joint legal custody in California. If you first need a primer on how custody works in genera, visit our main child custody page here. While this page is intended to be informational, it’s important to remember that each custody case is unique, and it would be impossible to detail all the potential variables of a hypothetical legal custody case. If you have a specific legal question, consider contacting our Orange County family law attorney to see how we can help.
Joint Legal Custody in California— What is It? What Does the Law Say?
California Family Code § 3003 defines joint legal custody as both parents sharing the rights and responsibility of making decisions related to the health, education and welfare of their child.
While this type of custody involves the decision-making process of child rearing as opposed to physical custody, it is possible for parents to share both legal and physical custody. Often time however, parents will share legal custody, while the other has primary physical custody. For a more detailed overview of the different types of child custody, visit this page here.
According to an article written by faculty at Berkeley Law School, and published in the Berkeley Law Scholarship Repository in 1990, early advocates argued in favor of this type of joint legal custody because it “strengthens or maintains nonresidential parents’ commitment to their children, … this increased commitment increases nonresidential parents’ visitation with their children.”
Another argument early advocates gave was that joint legal custody fosters communication between the parents. “By requiring communication and cooperation between parents to make decisions concerning the child, [it] encourages parents to develop a positive co-parenting relationship,” the article noted.
However, early critics of joint legal custody argued that the need for continued communication between two separated parents could be a source of family stress. “Joint legal custody may give responsibility for the child to one parent, the physical custodian, and preserve the nonresidential parent’s right to meddle in the residential parent’s affairs.”
While the jury is still out on whether either scenario is more accurate than the other, joint legal custody arrangements are an integral part of family law. Like it or not, there are times when a parent’s rights as legal custodian are called into question. For instance, if one parent had a scheduled visitation with the child for the weekend, he or she might wonder if it were necessary to contact the other parent to confer about every parenting decision related to the child. Thankfully, this is not what is meant by joint legal custody.
Joint legal custody does not require mutual consent for every little issue that arises. However, there are cases when mutual consultation between parents is in order. Family Code § 3083 offers some clarity on the issue. It states the following:
“In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child.”
This means that before the court issues an order on a custody arrangement, there will be certain stipulations agreed to between the parents. While each case is different, a typical arrangement might include the following stipulation:
“Both Petitioner and Respondent will be empowered to obtain emergency medical care for the minor children without the consent of the other parent. A sharing of routine health information is encouraged.”
How Does Legal Custody Differ From Physical Custody?
While legal custody deals with decisions made about a child’s health, and education, physical custody deals with issues of supervision and the place where the child physically resides. Physical custody, like legal custody, can either be sole or joint. Prior to the distinction in California law between legal and physical custody, a parent might simply be awarded sole custody of a child. This meant the other parent lost control over decisions relating to a child’s medical care, religious education, and schooling, in addition to physical custody of the child.
And while the addition of legal custody is viewed as a solid improvement in the law by many, issues can arise when one parent physically has custody of the child, and is unclear on whether or not the other parent should be included in a decision involving the child.
Some parents legitimately don’t know whether the other parent should be involved in a specific decision — this is why it’s good to have access to a good lawyer when issues of custody come up. However, there are cases in which the parent does know the answer, and refuses to involve the other parent intentionally. This is a violation of the other parent’s rights as a joint legal custodian.
Again, for a more detailed overview of the different types of child custody, visit this page.
Common Joint Legal Custody Issues
Issues can arise in joint legal custody situations involving education, medical or dental care, as well as issues of residency. Here we’re specifically discussing whether or not a parent can have access to a child’s medical, dental, or school records.
In some cases, the court might carve out an exception, however, generally speaking, the law states that both parents are entitled to this information in a joint legal custody situation.
A hypothetical case where confusion could arise might involve a father who is trying to keep apprised of his kids’ progress in school. For whatever reason, his former wife is being uncooperative in sharing pertinent information. She refuses to discuss report cards, school meetings and absences. Perhaps the father even goes to the school to view the child’s records, but is denied access by a secretary.
“Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because the parent is not the child’s custodial parent.”
Another issue that might arise occurs when the parent with physical custody decides to move a great distance from the other parent. The parent with legal custody who hasn’t been properly notified of his children’s change of residence needs to know they have rights when it comes to this very situation.
Family Code § 3024 states the following:
“If the court does not consider it inappropriate, the court may specify that a parent shall notify the other parent if the parent plans to change the residence of the child for more than 30 days, unless there is prior written agreement to the removal.”
In addition, the law states that a copy of the notice shall be sent to the other parent’s attorney, whenever possible, 45 days before the proposed change of residence so as to “allow time for mediation of a new agreement concerning custody.”
Unfortunately, situations occur in which either one or both parents are at odds with one another. As a result, they don’t cooperate with the terms of the custody agreement. A parent with primary physical custody might attempt to make a decision to move with the child without notifying the other parent. This is a violation of the other parent’s rights as a legal custodian.
While there are a number of steps to deal with such a situation, it is always recommended that if you have questions, you contact a family attorney for guidance.
How To Deal With Violations
The following list includes some suggestions for dealing with a parent who violates the terms of a legal custody agreement. It’s important to remember that, depending on your specific situation, these suggestions may or may not be the appropriate response. It’s always a good idea to discuss your case with a qualified attorney to figure out the best way to proceed. However, we often make the following suggestions to clients involved in legal custody disputes.
Communication is Key
This is something a good family lawyer will stress before recommending you take a former spouse back to court.
Some people are anxious to punish their former spouse when a custody agreement has been violated. But often a couple goes back to court and the first thing a judge asks whether the two have tried to work things out yet. When the answer is no, the judge can become irritated, and issue a ruling that neither party is happy with.
Whenever possible, barring some type of parental emergency, it’s always recommended that the couple work the issue out amongst themselves, or with the help of their attorneys.
When Seeking Information, Go to the Source
If you have encountered a problem where your ex doesn’t want to be transparent about your child’s education or medical situation, it might be a good idea to go directly to the source of the information. For instance, you might go directly to your child’s doctor with a copy of your court order. Or you might go to your child’s school with the same document and speak directly with the principal.
When All Else Fails, Go To Court
As mentioned earlier, it’s usually best to save this for a last resort. However, sometimes a difficult former spouse will leave you with no choice, and court is the only way to ensure your rights are honored. A number of different legal options are available to a person in a courtroom setting. This could include seeking a modification of the existing custody order, or even filing a contempt action.
If you are going through a divorce and are wondering about the future custody arrangement involving your children, or you are already divorced and have questions about an existing custody arrangement, it’s recommended that you consult a experienced family law attorney.
As this article has hopefully shown, there are a number of different questions that can occur when it comes to understanding your rights as a legal custodian of a child. Family law is complex, and custody disagreements can be emotionally-charged events. Sometimes it becomes necessary to have an objective legal mind re-examine your case and advise you of your options. This might be helpful if you’re simply trying to communicate and clarify your rights directly to your former spouse, or you’re seeking the modification of an existing custody agreement in a courtroom setting.
Remember that each custody issue is different. No informational article could possibly detail the different possibilities that can occur in a joint legal custody situation. If you have questions about a specific family legal issue, contact our office to see how we can help.