Customizing Your Case – Legal Custody

This post expands on earlier posts:  What is Child Custody? and Customizing Your Case – Physical Custody & Parenting Time

Legal custody involves decisions about health, education, and religious upbringing of a child.  It is also called decision making.  By agreement, parents can define legal custody to involve additional issues, such as selection of extracurricular activities, childcare providers, and other important matters about which both parents want to give input and make decisions.  Legal custody involves communication, consultation, access to information, participation/attendance, and making the decision.

In Maryland, we do not have a custody statute.  There is not a single, unified definition of legal custody, though it has been described as:  “Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” and “The parent not granted legal custody will, under ordinary circumstances, retain authority to make necessary day-to-day decisions concerning the child’s welfare during the time the child is in that parent’s physical custody. Thus, a parent exercising physical custody over a child, whether pursuant to an order of visitation or to an order of shared physical custody, necessarily possesses the authority to control and discipline the child during the period of physical custody. Similarly, that parent has the authority to consent to emergency surgery or emergency major medical care when there is insufficient time to contact the parent having legal custody.”  Taylor v. Taylor, 306 Md. 290 (1986).

We do, however, have a statute that entitles a parent, who does not have physical custody, to access certain records about his/her child.  Family Law Article §9-104 states:  “Unless otherwise ordered by a court, access to medical, dental, and educational records concerning the child may not be denied to a parent because the parent does not have physical custody of the child.”

Legal custody falls into three broad categories:

  1. Sole legal custody;
  2. Joint legal custody; and
  3. Joint legal custody with tie-breaker.

Sole legal custody means one parent makes decisions.  Joint legal custody means both parents make decisions together.  And, joint legal custody with tie-breaker means that both parents are supposed to make decisions together, but if there is an impasse and the parents cannot agree, then one parent has the right to make the final decision.

Joint legal custody includes communication and consultation between parents and with providers about the legal custody matter at hand, attendance/participation in a child’s appointments and conferences with providers, and access to information from the child’s providers.

Sole legal custody may include communication, consultation, attendance/participation, and access to information, but leaves the decision making with one parent.

When parents with joint legal custody encounter impasse, as mentioned one parent may have tie-breaker decision making.  However, parents may elect or the court may order additional services for parents to help resolve the impasse or before a parent may exercise tie-breaking authority.  For example, joint consultation with the child’s provider, mediation, and/or parent coordination.  Likewise, some parents may choose or the court may order that each parent have tie-breaker on different issues; for example, medical decisions to one parent and education decisions to the other.  This is fraught with potential problems, due to inconsistent decision making, when medical and education decisions are intertwined.

When parents refer to “full custody”, it is important to figure out what is meant – whether physical custody, legal custody (decision making), or both.  For some parents, “full custody” means having a say about a child.  For other parents, “full custody” means time with a child.  For still others, “full custody” means both.  Because there are so many labels for the same or similar concepts, it is important to get on the same page about what the labels mean and be specific about parenting time schedules and decision making arrangements.

Legal custody should be based upon a child’s best interests, taking into account factors such as:

1) fitness of the parents

2) character and reputation of the parties

3) desire of the natural parents and agreements between the parties

5) preference of the child

7) age, health and sex of the child

8) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare

9) willingness of parents to share custody

10) relationship established between the child and each parent

11) potential disruption of child’s social and school life

12) geographic proximity of parental homes

13) demands of parental employment

14) age and number of children

15) sincerity of parents’ request

16) benefit to parents

Plus, any other factors.

Montgomery County v. Sanders, 38 Md.App. 406 (1978) and Taylor v. Taylor, 306 Md. 290 (1986).

As discussed in my other post about Customizing Your Case, when creating a parenting agreement, parents can be as detailed as they both agree to be.  They can address matters that the court either cannot or is not inclined to address.  For example, defining legal custody categories, including categories that the law does not explicitly consider as legal custody matters, but that have significant impacts on the child.  Extracurricular activities and childcare providers, for example.

Consider the cost of compromise to achieve a parenting agreement over the loss of control over the outcome if the case goes to trial.  What can you – and more importantly, your children – live with?

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked InFacebook, and LindsayParvis.com and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.

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