The legal and residential custody of any children of the marriage must be resolved (either by way of a court order or an agreement) in order to finalize a divorce.
Legal custody refers to the parent with the authority to make major child-rearing decisions, i.e., those related to the children’s health, education, religion, and general welfare. Such decisions vary greatly from day-to-day decisions, such as whether a child sees a movie with a friend or what the child wears to school on any given day, which are most always made by the parent with whom the child is with at the time.
Upon a divorce, parties will either share joint legal custody or one parent will be afforded sole legal custody. Sole legal custody is a scary term for most; however, many settlement agreements and courts will afford the non-legal custodian a voice in the decision-making process despite an award of sole legal custody.
Most commonly, a non-legal custodian is afforded a role in the decision making process by way of “meaningful consultation” or “notification.”
Meaningful consultation means that before the legal custodial parent makes a major child-rearing decision, such as what high school to enroll a child in, he or she must first consult with and constructively discuss the issue with the other parent.
The ultimate goal is that the parents reach an agreement and implement the agreed upon decision. Although one parent technically has sole legal custody, the other parent still has “a say.”
If the parties cannot reach an agreement, the sole legal custodian has the authority to make the final decision and that decision will be implemented.
Another form of consultation is that of affording the non-legal custodian notice prior to the actual implementation of a decision.
In this scenario, there is no obligation for the legal custodian to discuss the issue with the other parent prior to making the decision. However, prior to rendering his or her final decision, or implementing the decision, such as starting a child at a new daycare, the legal custodian must provide the other parent reasonable notice of his or her intent to do so.
During the time between receiving notice and the actual implementation of the decision, the non-legal custodian is afforded a certain amount of time to seek court intervention and/or voice objection to the decision, such as submitting to the legal custodian any materials (articles, fact sheets, etc.,) he or she feels supports his or her position.
Once the legal custodian considers the other parent’s objection, he or she may move forward with his or her original decision, or make a decision in line with the other parent’s objection. Here again, the legal custodian has final decision making authority and ultimately makes the final decision, but the non-legal custodian is still afforded a role in the process.
Remember that the courts always remain available to intervene when necessary. While a judge will not entertain a frivolous application for intervention or hold a hearing for every decision involving the children, they will intervene when necessary in order to protect the best interests of the children.