We previously addressed the basics of legal custody here. In that post, we set forth the two types of legal custody, joint and sole. In a substantial majority of cases, joint legal custody will be appropriate. However, in certain cases, sole legal custody to one parent will be warranted.
Let’s start with joint legal custody and the factors a court must consider in the event an agreement cannot be reached.
How Does the Court Determine Legal Custody?
If your case requires a trial and legal custody is in dispute (usually meaning at least one parent wants sole legal custody), the court must determine the best interests of the child and consider the following factors:
- The fitness and suitability of each of the persons awarded joint custody
- Whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare
- The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age
- Whether the child has established a close & beneficial relationship with both persons awarded joint custody
- Whether the persons awarded joint custody:
(a) live in close proximity of each other
(b) plan to continue to do so
- The nature of the physical and emotional environment in the home of each of the persons awarded joint custody
What is The Most Important Factor in Determining Custody?
Generally speaking, the most important factor is number 2 – can the parents communicate effectively enough such that the child’s welfare is not hindered. In other words, are the parents capable of making joint decisions that are in their child’s best interests.
Joint legal custody does not mean that you have to sit with your ex-spouse over coffee and cheerfully discuss issues involving your child. Rather, it mean that the parents must communicate regarding big ticket decisions involving school, medical, or religion. That communication can be via text or email. (Side note: Use email whenever possible. It’s much easier to save and reproduce if needed for court.) The important point is that the parents are able to communicate in a civil manner regarding their child.
When is Sole Legal Custody Appropriate?
If there is a fundamental breakdown in communication between the parents and one or both parents are incapable of reaching agreements, then a court may decide it is in the best interests of the child that one parent have the tie-breaking vote in the event of a deadlock. It is not enough that you do not like your child’s parent or ex-spouse. In many cases, if you have gone through a divorce or are not with that person any more, it is safe to assume that the two of you do not get along perfectly. Rather, the communication issues must be substantial enough that joint decision making is not practical. Examples of such communication issues are abusive responses (cursing, name calling, etc.) and non-responsiveness (you can’t get an answer).
Family disputes can be emotionally and financially exhausting. We will pursue your goals aggressively in the most cost-efficient manner possible and assist you in striving for the best outcome for you and your family. For additional information concerning legal custody, please go to our discussion of custody/parenting time. Please feel free to call ROBERTS MEANS, LLC at (317) 353-3600 or contact us via email if you have any questions concerning the custody of your child.