May 1, 2020
As I was preparing a child custody case for litigation this week, I thought it would be useful to write about legal custody in a preventative law type of context.
Legal custody is essentially the right and responsibility of making decisions regarding a child’s health, education and welfare. Sometimes, failure to agree on legal custody issues during a marriage or relationship may lead to the end of that marriage or relationship. So, it makes sense to have the hard and challenging discussion about legal custody issues before getting married and certainly before having children.
Here are some legal custody issues and some discussion points:
Enrollment in or leaving a particular [private or public] school or daycare center. Do you believe in private school and the other parent believes in public? That’s a conflict. How about home schooling. I have seen fact patterns where one parent in vehemently opposed to anything other than home schooling while the other parent just as vehemently opposes home schooling. How will this be resolved?
Participation in particular religious activities or institutions. Is one parent a particular faith while the other parent is not? How will the children be raised? Will the entire family go to one worship service on the weekend or will time be split between two houses of worship? How will religious holidays be celebrated?
Beginning or ending psychiatric, psychological, or other mental health counseling or therapy. This is huge. Often, a child will have mental illness, a doctor will recommend medication to treat the mental illness, one parent will be in support of the medication and the other parent will not. Or, on a much larger scale, one parent will not believe in mental illness at all, which can cause a huge rift and swift deterioration of the marriage or relationship.
Selection of a doctor, dentist or other health professional (except in emergency situations). Does one parent believe in holistic medicine and only holistic medicine and the other parent does not?
Non-emergency medical, dental, or mental health treatment or counseling. Autism and its treatment can be a major bone of contention between parents. For example, one parent will dedicate all of her or her free time to helping the autistic child with treatment while the other parent is not involved. Or, a parent may leave his or her job to take care of this child, leaving the couple financially challenged. Bitterness and fights that lead to the break-down of the marriage or relationship can ensue. It’s a good idea to discuss how such issues will be handled.
Immunization and vaccinations. One parent may believe in vaccinations while the other parent does not, which can affect whether the child can be enrolled in school and/or participate in certain extracurricular activities.
Issuance of a driver’s license or passport. Are you both on the same page as far as when the child can drive? How about international travel? Some parents do not agree that a child should leave the country until a certain age. What if the other parent is not from this country and wants to take the child to visit overseas relatives?
Participation in extracurricular activities. Some parents want their children to participate in sports while other parents want them to solely focus on academics. Are you one of those parents? How will this get resolved?
Body piercing and tattoos. Is one parent in favor and the other parent not? This is a discussion point.
Some other points to consider are food preferences. Will the children be raised gluten free, vegetarian, vegan, kosher? How about pre-marital sex?
Legal custody issues are likely not pleasant discussions. It’s far more fun to discuss picking names for a child, picking a color for the babies’ room and dreaming about where he or she will go to college. But, failure to talk about these issues before considering pregnancy could lead to fights between the parents later on. Can these fights be resolved in counseling? Perhaps; but, far too often, I see a failure to discuss and prepare that sets a marriage or relationship up for a swift and painful end. I have come across a number of pre-marital classes offered by different entities and organizations over the past few years; while I am not certain whether they cover legal custody issues, they seem like a logical place to start.
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