Legal Custody and Your Child’s Welfare

By | June 13, 2023

If you are involved a child custody case, you should make sure that you understand the legal terminology. There are two basic kinds of custody: “physical custody” determines where your child will live — with you, with your ex-spouse or ex-partner, or with some third party. Physically custody also, necessarily, determines who will play the greater role in establishing your child’s day-to-day routines. “Legal custody,” on the other hand, determines who will be responsible for decision making in broader areas concerning your child’s welfare.

Different U.S. states lay emphasis in different areas, but, broadly, there are four aspects of your child’s welfare that become the responsibility of the party winning legal custody. The first of these is medical and dental care. The party with legal custody determines where and how often your child goes for routine physical and dental exams, what medications your child should take, how your child should be treated for ailments or diseases, and what steps should be taken in emergencies or other unanticipated circumstances. Sometimes, problems arise over medication. If you have both physical and legal custody of your child, and your child is on medication, you must ensure that your ex complies with administering the medication during times when he or she takes your child for a long weekend according to the visitation schedule. If you have reason to believe that your ex will not comply, whether from negligence or disagreement about the medication, then you may have a case to change the visitation schedule.

The second broad area covered by legal custody is education: where your child will attend school, whether your child should be enrolled in any special education programs, coping with any school-related problems your child may have, and the like. The school will assume that both parents, even if separated or divorced, have equal rights to make decisions about enrollment in special education, unless the custody agreement specifically determines that one parent has sole legal custody and sole decision making power over school matters. Even in this case, both parents have the right to know about a child’s special education program and to sit in on meetings between parents and educators; schools will routinely give copies of a child’s school records to either parent. Before the school can withhold records from a parent, the custody agreement must specify that the parent NOT having legal custody also not be permitted access to school records.

The third area covered by legal custody involves religious upbringing; legally, this area is perhaps the trickiest of all, especially if the separating parents follow different religious faiths. In all custody cases, the court must base its decision on what is in the best interests of the child. However, the First Amendment guarantees the free exercise of religion to all Americans. So if the parent not having physical custody of the child — the noncustodial parent — complains to the court that the custodial parent’s religious activities are not in the best interest of the child, the court must then decide whether to encroach on the custodial parent’s First Amendment rights. Sometimes, a court can dismiss a complaint as frivolous, but in other cases — whether a twelve-year-old boy should be circumcised, for instance — there may be substantial arguments on both sides. Depending on the age and maturity of the child, a court may well take the child’s own wishes into account, and the age of twelve has been used as a threshold point for seeking a child’s own testimony.

Finally, legal custody grants the right to make decisions about a child’s extracurricular activities; it may be difficult to pin down a precise legal definition of this term, but it is generally understood to mean any optional activities outside a child’s established curriculum. There will be ambiguity. Both a routine overnight sleepover at a neighbor’s house and a six-week stint at a rugged deep-woods summer camp can be considered “extracurricular activities,” but only the latter should be a matter of genuine concern to a noncustodial parent. If you have neither physical nor legal custody of your child but hear through the grapevine that your ex has enrolled your sixteen-year-old in an activity that you consider dangerous, you can petition the court, arguing that the activity is not in your child’s best interest. If you have any doubts beforehand, try to spell them out as precisely as possible in the custody agreement.

Courts these days are more and more granting joint legal custody, even if only one parent has physical custody. From the start, then, both parents will continue to have equal input into decision making about their child’s welfare, and these joint legal custody arrangements tend to work best.