Most people are familiar with the term "child custody." However, if you're going through a divorce or separation, it's essential to understand that there are different types of custody arrangements — and you can tailor any custody agreement to meet the specific needs of your children. Although the first concern for parents is generally where their children will live, it's also just as important to consider which parent will be making crucial decisions that affect the many aspects of their children’s lives. In addition to carefully considering what type of physical custody arrangement might be best for their children, parents should also weigh the pros and cons of sole legal custody.
There are two parts to child custody in California: physical custody and legal custody. Not to be confused with physical custody — which means with whom the children reside — legal custody refers to which parent has decision-making authority. Either type of custody can be "joint" and shared between the parents, or "sole" and given to only one parent.
Legal custody of a child involves making decisions concerning:
Effectively, sole legal custody means that only one parent will have the exclusive authority to make decisions that affect the child's welfare. With joint legal custody, parents share decision-making responsibilities. If the court grants legal custody to one parent, they will not have to consult with the other before making certain choices that affect how the children are raised.
Courts encourage parents to work together when it comes to decisions affecting their children. Nevertheless, in some cases, this may not be possible for any number of reasons. For instance, sole legal custody may be the best option when one parent has a mental health condition or suffers from addiction and substance abuse issues. Additionally, the court may grant exclusive decision-making authority in cases involving abuse, abandonment, or neglect by the other parent.
Sole legal custody may also work well in situations where one parent lives in a different state or country and would not be readily available to make immediate decisions when necessary. A custodial parent might also file for sole legal custody when the other parent is absent from the child's life and fails to maintain a relationship or contact.
Importantly, sole legal custody is generally not determined based upon a conflict in parenting styles. Rather, the court will consider the best interests of the children in rendering its decision.
Before filing for sole legal custody, you should carefully consider why you think the arrangement would benefit your children. While it might be easier to not have to co-parent with your former spouse or partner, this reason by itself is usually not sufficient for a court to grant a request for sole legal custody. However, if the child's other parent is incapable of making decisions in their best interests, you may have grounds to file a petition.
If you and your former spouse or partner can work out child custody without court intervention, it's critical that the agreement is in writing and approved by the court. Conflict can arise even in the most amicable cases — if your custody agreement was not properly documented and is not legally enforceable, you could potentially find yourself in the midst of contentious litigation.
In cases where the parties cannot reach an agreement concerning whether legal custody will belong to one parent or it will be shared, a petition will need to be filed in family court. The case will then be scheduled to be heard before a judge and both parties will have an opportunity to present their arguments. It's vital to have the guidance of an experienced family law attorney who understands the nuances of drafting custody petitions, and to protect your legal rights both inside and outside the courtroom.
A parent should think about the pros and cons of sole versus joint legal custody before filing a petition. Although the obvious benefit to having sole custody is not having to speak with the other parent before making decisions about schooling, doctors, or religious instruction, there can also be drawbacks.
It's always best for children to see that their parents are able to communicate, work through their conflicts, and co-parent effectively. If one parent does not get to participate in decision-making, they may inadvertently become less involved in the children's lives, which can have a negative impact on the parent-child relationship. Depending on the situation, a sole legal custody arrangement may become a source of contention between the parents and increase conflict.
On the other hand, tension between parents may be reduced if there is limited communication. Sole legal custody may also be advantageous to the children if one parent is not reliable or readily available to make immediate decisions in the event of an emergency. Sometimes, sole legal custody can create a more stable environment for children and help eliminate any confusion they might be experiencing from having parents who have contrasting parenting viewpoints.
Child custody matters can be highly emotional and overwhelming. If you're facing divorce or parting ways from your significant other with whom you share a child, a skilled family law attorney can help take the burden off your shoulders. The Law Offices of Rick D. Banks is committed to working with clients to create legally enforceable custody agreements that can help reduce conflict and ensure the best interests of their children are met.
The Law Offices of Rick D. Banks has been helping clients in Fresno and the surrounding area achieve positive outcomes for their child custody and family law matters for more than 20 years. To schedule a no obligation consultation, call (559)222-4891.