Joint Legal Custody: What Is It? Why Have It? (April 2000)

Material for South Carolina Bar “Cool Tips” Lecture, April 2000; Published in South Carolina Lawyer, July 2000

Long before South Carolina law recognized a distinction between legal custody and physical custody, family law practitioners did. Case law mentions joint legal custody but does not discuss what it means. See e.g., Pitt v. Olds, 333 S.C. 478, 511 S.E.2d 60 (1999); Dodge v. Dodge, 332 S.C. 401, 505 S.E.2d 344 (Ct. App. 1998); Schwartz v. Schwartz, 311 S.C. 303, 428 S.E.2d 748 (Ct. App. 1993), cert. dismissed, 314 S.C. 335, 444 S.E.2d 498 (1994); Wierszewski v. Tokarick, 308 S.C. 441, 418 S.E.2d 557 (Ct. App. 1992). One of the many mysteries of family law is why the first definition of legal custody was buried in a child support guidelines regulation, but there it rests in 27 S.C. Code Ann.Regs. 114-4730 (Supp. 1999): “Legal custody refers to decision-making authority with respect to the child(ren).”

Hence, joint legal custody refers to situations in which more than one person has decision- making authority for a child. Often claims to this decision making authority can be as or more contentious than claims to physical custody. Many a parent who can accept having his or her child spending less than half the nights in that parent’s home cannot abide having little or no say in the child’s educational or religious upbringing. In these situations joint legal custody may be an effective method of resolving such claims.

Joint legal custody has no fixed definition and it is up to practitioners to supply the definition. Thus, a well-drafted definition of joint legal custody is vital in preventing future disputes regarding just what the parties have agreed to. I have developed two different definitions of joint legal custody for use in very distinct situations.

The first version of joint legal custody is one I think of as strong joint legal custody. It is defined as follows:

• The parties must agree to any changes in schooling, extracurricular activities, or religious instruction and to any non-emergency medical care;
• The parties must keep each other informed of the identity of the child’s teachers, day care providers, medical providers, psychiatrists, psychologists or mental health counselors;
• Each parent must inform the other of any of the child’s school, church or extracurricular activities to which parents are invited;
• Each party must inform the other when scheduling medical appointments for the child of the date, time, location and reason for the appointment and both parties shall be entitled to attend these appointments. Except in emergencies, both parties shall strive to schedule these appointments for mutually convenient times;
• Neither party shall allow the child to be pierced or tattooed without the express agreement of the other;
• (optional) If the parties cannot agree upon a modification of the child’s schooling, extracurricular activities, or religious instruction or to any non-emergency medical care, they agree to enter into mediation with . The parties shall split the mediator’s fee on the following basis:.

This version of joint legal custody is most appropriate in situations in which there are two actively involved parents who remain committed to being actively involved in the child’s life. Because both parties effectively have veto power over changes in the child’s life, this type of joint legal custody requires that the parents have the ability to cooperate with each other regarding the child.

Though the parents do not have to like each other for this type of joint legal custody to work, they do have to get along as it regards the child. If there are substantial disagreements regarding the welfare of the child, this type of joint legal custody is untenable. In such situations, the practitioner is doing his or her client a disservice by recommending it-even if such joint legal custody is a deal-breaker on a proposed agreement. Giving two parents who cannot agree on the child’s welfare veto power over the child’s life will create misery for the child and the parties. Ultimately the parties will be back in court seeking to modify the joint legal custody arrangement and they will blame their prior counsel for the problem.

However, where the parents are able to get along and have substantial agreement regarding the child’s welfare, this type of joint legal custody can be very effective. Often parents who have been actively involved in their child’s upbringing recognize that they cannot devote their energies to being a full-time custodial parent but feel that their contribution to the child’s upbringing need to be validated and encouraged. Strong joint legal custody does this. Parents who exercise these rights are unlikely to ever find that they have become a stranger in the child’s life, which, in a custody case, is often the biggest fear of a non-primary caretaker but actively involved parent.

In fashioning a strong joint legal custody agreement, the provision regarding mediation is highly recommended. The court’s jurisdiction to resolve post-final decree disputes regarding schooling, religion and other legal custody decisions is unclear. Quite possibly the court cannot resolve these disputes but must simply modify the legal custody arrangement to give one parent or the other sole legal custody. Accordingly, having a mechanism in place to resolve these disputes without resorting to a modification action can be extremely helpful to preserving the joint legal custody arrangement. Often the mediator in the agreement can be the mediator or guardian from the custody case; however, it is important that the mediator be named in the agreement or final order so that the parties do not later fight over who will mediate these issues. The key to a well-drafted mediation provision is to allow the parties a meaningful opportunity to resolve their disputes without the necessity of seeking a modification of the joint legal custody arrangement.

A second version of joint legal custody is one I think of as weak joint legal custody. It is defined as follows:

• The primary custodial parent must consult the secondary custodial parent regarding any changes in schooling, extracurricular activities, or religious instruction and to any non-emergency medical care; however if the parties cannot agree, the primary custodial parent will have final decision making authority;
• The primary custodial parent must keep the secondary custodial parent informed of the identity of the child’s teachers, day care providers, medical providers, psychiatrists, psychologists or mental health counselors and the secondary custodial parent shall have access to all related records without the necessity of a release being signed by the primary custodial parent;
• The primary custodial parent must inform the secondary custodial parent of any of the child’s school, church or extracurricular activities to which parents are invited and inform the secondary custodial parent of the child’s medical appointments as soon as the primary custodial parent becomes aware of these activities. The secondary custodial parent shall be entitled to attend these activities;
• The primary custodial parent shall provide the secondary custodial parent with copies of the child’s report cards, school records, religious records, medical records and extracurricular activity records upon their receipt by the primary custodial parent;
• (Optional-but desirable in cases in which the parties live far apart or the secondary custodial parent has extensive visitation) The secondary custodial parent shall be entitled to take the minor child to necessary but non-emergency medical appointments during times when he or she has visitation, so long as he or she informs the primary custodial parent upon making such an appointment.

This type of joint legal custody is most often appropriate when the primary caretaker of the child is being asked to give up primary physical custody of the child. Often such parents fear that giving up custody is a sign that they are bad parents; allowing such parents to claim joint legal custody can lessen this stigma. Sometimes primary caretaker parents fear that giving up custody will destroy their relationship with their child; this type of joint legal custody can reduce this fear.

The cynic will note that this joint legal custody definition is not really joint legal custody. Unless the noncustodial parent is a disruptive influence, these provisions should be part of any agreement on custody-whether or not there is joint legal custody. Even when these provisions are not part of a court order, I encourage custodial parents I represent to do these things, as it reduces the opportunity for a noncustodial parent to claim parental interference or alienation.

Yet the cynic would only be half right. By agreeing to this version of joint legal custody, the primary custodial parent commits to allowing the other parent access and input into the child’s life. It is hoped that the spirit of cooperation which this joint legal custody definition entails will extend past the litigation process. Often the offering of weak joint legal custody can allow the “losing” party in the custody battle a face-saving surrender (as opposed to a fight-to-the-death, a/k/a trial). Weak joint legal custody arrangements also reduce the risk of subsequent modification actions brought so that the noncustodial parent can prove his or her rehabilitation.

There is one caveat regarding joint legal custody. It is unclear how much having joint rather than sole legal custody may affect subsequent relocation cases. It may be noteworthy that the Court of Appeals did not mention the existing joint legal custody situation in allowing the primary custodial parent to relocate with the minor child in the case of Pitt v. Olds, 327 S.C. 512, 489 S.E.2d 666 (Ct. App. 1997), while the Supreme Court did in denying the relocation. Pitt v. Olds, 333 S.C. 478, 511 S.E.2d 60 (1999). It could be that the court considers joint legal custody evinces a commitment to co-parenting and therefore places a higher burden on a parent seeking relocation.