Definition of Joint Legal Custody
Joint legal custody is a concept referenced in North Dakota’s child custody law, N.D.C.C. § 14-09-28, and other family law statutes. It is one of the two broad categories of custody, along with physical custody. Simply put, legal custody determines who makes the decisions regarding a child.
N.D.C.C. § 14-09-28(3) defines legal custody as:
Legal custody is the right and responsibility of a parent to make decisions regarding the child’s upbringing including education, health care, and religion. If the court awards joint legal custody of a child, both parents share the right and responsibility to make decisions in the areas of education, health care, and religion and neither parent has the right to make major decisions without the other parent’s consent as to those areas of the child’s life. If the court awards sole legal custody of a child , the parent awarded sole legal custody has the right and responsibility alone to make decisions regarding the child’s upbringing, including the child’s education, health care, and religion.
The North Dakota Supreme Court has clarified that the phrase "major decisions" is not found in the statutory definition. Granting joint legal custody does not mean that the parents have to agree on every small decision concerning the child. It means they have to agree on major decisions, such as where to send a child to school or whether a child should receive certain medical treatment. However, joint legal custodian parents cannot voluntarily delegate decision-making authority to the other parent. Like physical custody, legal custody is intended to be in the children’s best interest. By retaining joint legal custody, parents stay involved in making important decisions for their children. Just because parents no longer live together does not mean they have to lose that ability.
Clarification of Final Decision-Making Authority
"Final decision-making authority" is a term which has been used in Virginia law since at least the inception of the modern custody statute in 1977. Joint legal custody simply means that both parents share the authority and responsibility for decisions to be made regarding the care and upbringing of the child — in certain respects. Compared to a true sole legal custodial arrangement, one parent sharing final decision-making authority amplifies that right to only those parenting areas granted final decision-making authority under the statute. This is a far more limited custodial relationship than an expansive "joint legal" arrangement. (These areas are often referred to as "enumerated areas" of final decision-making authority.) Under current Virginia law, these areas are: education; health care; religion; and extracurricular activities. Under this arrangement, one parent is vested with the authority to make final decisions in these limited areas regardless of the objections of the other parent. Because of this expanded decision-making authority, many judges prefer to grant final decision-making authority to one parent in a joint legal custody arrangement unless there is some compelling reason why it is not in the child’s best interests.
Advantages and Disadvantages
Joint legal custody with final decision-making authority can be beneficial for parents, as it allows them to share authority in an important area of their child’s life. Parents can work together and make important decisions together concerning the education, health care and religious upbringing. This can prevent undue conflict or tension about these issues and may help the parents foster a more cooperative parenting relationship. Also, joint legal custody with final decision-making authority can prevent one parent from unilaterally making decisions that could be detrimental or harmful to the child.
However, joint legal custody with final decision-making authority can prove challenging for parents who are unable to see eye-to-eye on most issues. In this situation, the sharing of authority can hinder the ability of one parent to make important decisions in his/her child’s best interests. In addition, constant conflict over decision making can be stressful and confusing for a child. A child may feel pulled in two different directions and may resent his/her parents for being unable to agree on an issue. The continual conflict may also jeopardize the parents’ chances of being able to co-parent effectively.
Factors in Court Determination of Custody
In Illinois, the legal term for "joint legal custody" is "parental responsibilities" and "residential custody" is now termed "allocation of significant decision-making responsibilities" and "physical custody" is now termed "allocation of parenting time." A judge cannot award "joint legal custody" or "joint residential custody" without making these findings in writing of the relevant factors and reasons for the decision. "The court shall allocate parenting time in a manner that protects the children from conflicts between the parents and is in the children’s best interests." 750 ILCS 5/602.7(a)(1).
Factors to be Considered By the Court Per the Illinois Marriage and Dissolution of Marriage Act, the court must base the allocation on the following considerations:
o The Children’s Wishes: The court will consider both the parents’ and children’s wishes if the child has reached the age of 14 and wants to express his opinion.
o Parents’ Physical and Mental Health: Each parent’s physical and mental health will be considered, influencing where the child goes to live.
o The Child’s Adjustment: The judge will determine how well a child has adjusted to his home, school, and community as part of the custody determination process.
o The Child’s Interaction with Parents and Siblings: What is the child’s relationship like with each parent and any siblings?
o The Child’s Needs: How much can each parent provide for the child’s changing needs? What are the child’s needs now and in the future? Is there anything special each parent provides the child that is specific to that child?
o The Parents’ Ability to Cooperate: How well do the parents get along? Can they listen to each other’s views? Are they willing to work together for the child’s best interest?
o The Distance Between Parents’ Homes: How far apart are the parents’ homes? If parents live far apart, how easy is it for the child to travel from the other for parenting time, school, or medical appointments?
o How Time relates to the Child’s Development: The child’s developmental stage can affect how well he interacts with a parent.
o Each Parent’s Living Situation: The judge will consider where each parent resides and if any changes are necessary.
o Family History: What is the family’s history? Historically, who has taken care of the child?
There may be other considerations to the court in deciding custody arrangements, but these are the most common factors taken into account.
Effects on Parent-Child Attachment
As with almost all aspects of divorce, joint legal custody with final decision-making authority can significantly impact the parent-child relationship. For parents, raising a child with such an arrangement is likely to be a continual exercise in compromise. Absent significant interpersonal dysfunction, both the parents will generally be expected to jointly make a variety of significant decisions regarding their children, even if only the final decision-maker has the prerogative to make that choice. Parties generally negotiate their differences on less momentous issues all the time. However, absent some sort of formal dispute resolution mechanism , the general challenges frequently encountered in this context will be exacerbated by the friction created by the parties’ divorce.
For children, joint legal custody with final decision-making authority may also have a significant impact. While children will certainly not be privy to all of the legal technicalities associated with custodial arrangements, they will be aware of the tenor of parental conversations regarding various decisions and how parents react to jointly making the decision versus unilaterally deciding the issue. This understanding may influence the nature and subject matter of parental decision-making, which may be a source of contention for the adults involved and a source of stress for children.
Methods for Effective Co-Parenting
Effective co-parenting under a joint legal custody arrangement with final decision-making authority requires a foundation built on open communication, shared responsibility, and conflict resolution strategies. The following tips will help parents navigate the complexities of joint legal custody effectively.
Establish Open Lines of Communication
Effective communication is the cornerstone of successful co-parenting. Digital tools such as shared calendars can help parents stay organized and keep track of key events or appointments (e.g. school trips, doctor visits, or camps). Regular phone or video calls, emails, and text messages about the children are also very effective means of communication. Don’t just communicate about schedules or events – share the joys and challenges of parenting. This builds a rapport over time, allowing for the free exchange of ideas and information.
Create and Follow a Structured Plan for Decision-Making
With joint legal custody, parents share decision-making authority over key areas of a child’s life. Children tend to thrive in structured environments. Parents should create a plan that dictates when and how certain decisions will be made. It is best to share the plan with your child(ren) to create a sense of order and stability. A structure for decision-making will limit conflicts by ensuring parents know what decisions fall under their purview. A good plan will include a schedule for routine and emergency meetings between parents, and a process for resolving disputes. It is preferable to have meetings in-person; however, when distance is an issue, virtual meetings can be a viable alternative.
Be Open to Conflict Resolution Techniques
When parents disagree, they must find a way to resolve such disagreements without compromising the best interests of their children. A shared understanding of conflict resolution techniques will help parents to this end. Collaborative methods, such as mediation, can be effective for resolving issues relating to child custody arrangements. Such methods help parents to negotiate solutions to their disagreements in a positive and cooperative manner. They are also an excellent way to prevent issues from arising in the first place. Once parents understand how the conflict resolution process typically unfolds, they will be better prepared to tackle conflicts successfully and fairly. In some cases, it may be necessary to seek a mediator or mental health professional. While there are numerous factors to consider when navigating co-parent conflict, key strategies include:
a. Prioritizing the best interests of the children
b. Remaining neutral
c. Avoiding team situations, where each parent tries to win their child’s favor
d. Keeping emotions under control
e. Allowing children to voice their opinions
Communicate Effectively with your Children
During and after the split, children should be empowered to communicate their feelings, thoughts, and opinions about the split and the custody arrangement. Parents must avoid forcing the children into making and taking sides, so they do not feel torn between them. Help the children process their feelings and understand the situation by providing them with positive or neutral explanations of the reasons for the split. However, refrain from criticizing or speaking negatively of the other parent; do not put the burden of decision-making on your kids, and be open to their ideas for resolving issues. The successful navigation of co-parenting under a joint legal custody arrangement with final decision-making authority requires the consideration of a host of nuanced factors. Thankfully, effective co-parenting is possible when parents set aside their differences and remain focused on the welfare of their children.
Resources and Support Systems
Although joint legal custody with final decision-making ability may be an ideal situation for divorced parents, it is not always appropriate. Parents should carefully review their situation with an experienced family law attorney and understand the nature of their relationship with the other parent. The court will determine whether or not to award joint legal custody and final decision-making ability only after the best interest of the minor child or children has been considered. Factors that are taken into account include but are not limited to the ability of the parents to make joint decisions regarding the child’s well-being; communication and cooperation between parents; certain physical and psychological characteristics of the child and the parents; the parents’ work schedules and the distance between residences; the child’s wishes if the child is of sufficient age; other relationships the child has with grandparents, siblings and others; and any other factors that are relevant to the child’s best interest . Because of the complexity of the process of considering these many different factors, it is extremely important for parents to be represented by counsel who are familiar with New Jersey’s rules and laws regarding parenting time and custody issues.
A family lawyer experienced in child custody issues may be able to help the parents reach a joint agreement or compromise as to how to divide parental responsibilities and decision-making on their own. Many times, litigating these issues in court may not be in the best interest of the children. In determining the nature of custody that may be granted, courts will interview children who are old enough to express their preferences. An experienced child custody lawyer can counsel his or her client in regards to how to best prepare for such an interview. Although the court must apply the "best interest of the child" test, the preferences of the children are very persuasive.