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April Oliver: Decision-making between parents who aren’t married

It's The Law

Posted: September 2, 2010 6:11 p.m.
Updated: September 3, 2010 4:55 a.m.

When parents are divorced, or not married, which parent makes the important decisions on behalf of the child? Which parent may select the child’s doctor, school or daycare? If the parents have a judgment or legal custody order, the answer to these questions lies in the language of that order.

Legal custody refers to the responsibility to make decisions regarding the child’s health, education and welfare. Legal custody can be shared by both parents jointly, or, if the court deems one parent unfit to have legal custody, the court can award sole legal custody to the other parent.

It is important to understand that legal custody, whether joint or sole, is distinguishable from physical custody.
Physical custody refers to which parent has actual physical responsibility of the child — where the child might live for instance — whereas legal custody refers to the right and responsibility to make decisions related to the child.

With a joint legal custody order, the parents are to share in the right and responsibility of making decisions relating to issues of health, education and well-being. Sharing is the essential element of joint legal custody.

Decisions to be shared by the parents include, but are not limited to: enrollment in or leaving a particular private or public school or daycare center; participation in extracurricular activities; beginning or ending of psychiatric, psychological or other mental health counseling or therapy; issuance of a drivers license or passport; out-of-country or out-of-state travel; and selection of a doctor, dentist or other health professional.

In some cases where the parents share joint legal custody, the court may grant one parent “tie-breaking authority” on specific issues. For example, if the court has made a finding in the past that the father has an unreasonable objection to a child taking medication which is necessary for the health of the child, the court may order that mother has “tie-breaking authority” on any issues related to medication.

It is important to carefully read your joint legal custody order because some joint legal custody orders provide that neither parent shall make any decisions or act without the consent of the other. Other joint legal custody orders may direct the parties only to “share in the responsibility” of making such decisions. Based upon the way the orders are worded, some parents are in violation of the order if they act “unilaterally” or without the consent of the other parent in making decisions. For example, regarding what preschool to enroll the child in.

To understand your rights as a parent pursuant to your legal custody orders, you should review your order. If you have any questions as to whether you or the other parent are correctly following the legal custody orders, or any orders of the court, you should contact a family law attorney.

April Oliver is a partner at the law firm of Gharibian & Oliver. She may be reached at (661)254-4100. April Oliver’s column represents her own views, and not necessarily those of The Signal. “It’s The Law” appears Fridays and rotates between members of the Santa Clarita Valley Bar Association.  Nothing contained herein shall be or is intended to be construed as providing legal advice.


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