Legal custody of a minor child determines which parent will have the authority to make major decisions affecting the life of the child. It pertains to issues like education, health, activities, and welfare.
If one were to survey the legal custody arrangements, the majority would be joint legal custody. That means that both parents together, not just one parent, make those major decisions. Many parents agree from the outset to joint legal custody, but sometimes joint legal custody is the result even after lengthy and expensive litigation.
Is it worth fighting for sole legal custody?
No statute says that joint legal custody is presumed; in fact, Virginia Code Sec. 20-124.2 says the opposite:
In determining custody, the court shall give primary consideration to the best interests of the child. The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody.
While every case is different, it’s fair to say that there are at least four situations in which joint legal custody is likely fated to fail, and serious consideration must be given to sole legal custody.
1. If one parent has a history of abusing the other, it may be impossible as a practical matter to expect them to confer for the benefit of the child.
2. If one parent is impaired in some way, such as through drug or alcohol abuse, or otherwise too involved in solving their own issues, they may not be good candidates for joint legal custody.
3. Sometimes a parent is simply unwilling or unable to be involved in decision making, and problems cannot be solved unless one parent is the tie-breaker. One parent may simply be too uninformed to have meaningful input, and not interested in learning, as for example when a couple has a special needs child.
4. Finally, some parents are just not interested in the process of making decisions for a child. In those situations, an award of joint legal custody may simply be a salve and one parent may end up with the practical equivalent of sole legal custody and it may not be worth contesting the label, but it may also be possible in those situations to secure agreement creating sole legal custody in one parent.
Securing sole legal custody is not the end of the story in any case, because upon a change of circumstances, a court is empowered to modify a ruling on legal custody and to change how decisions are made.
Therefore, in the majority of cases, the likely outcome is that both parents will be entrusted with a vote on the decisions of significance for a child and expected to hash out any disagreements, the same way a couple might do it if they were still together. There are, most definitely, exceptions to this general proposition. A parent who demonstrates it will be so difficult to reach consensus with the other parent that the child will miss key opportunities or assistance, or a parent who can show that joint legal custody will permit an abuser to continue to intimidate the victim, may well meet the de facto requirements necessary to persuade a judge to invest one parent with the decision making authority. Attorneys with experience can help clients make informed assessments of the pros and cons of pursuing sole legal custody.