California Family Code 3003 defines the term joint legal custody.
In a nutshell, joint legal custody means both parents will share in the right and responsibility to make decisions regarding their children's health, education and general welfare.But what does that mean for parents? Does it mean parents have to obtain each other's consent for everything? Can parents make unilateral decisions about anything? Let's answer these questions and more.
Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
-joint legal custody joint
-physical custody (where the children spend a significant
portion of time with each parent), or
-joint legal and physical custody
When parents share joint custody, they usually work out a schedule according to their work requirements, housing arrangements and the children's needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house or apartment. Other joint physical custody arrangements include:
There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own. This is commonly called "bird's nest custody" or "nesting."
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent. There are, of course, disadvantages:
Children must be shuttled around.
Parental noncooperation or ill will can have seriously negative effects on children.Maintaining two homes for the children can be expensive.
If you have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing and medical care. At some point, your ex may claim he or she has spent more money on the kids than you have, and a judge will appreciate your detailed records.
Some parents believe everything related to a child requires consent if the parents have joint legal custody. Other parents believe joint legal custody does not mean consent but only requires the parents to talk about issues before either makes the decision. Technically, both of these are correct and incorrect. Much depends on how specific the joint legal custody order gets. For example, let us look at Family Code 3083. This code section states:“In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.”So as you can read, the court must be specific regarding the situations where both parents must consent. Does that really happen? Unfortunately, it does not. We have read plenty of court orders that state nothing about situations where the parents must obtain the other's consent before taking action.Fortunately for you, you are here and reading about joint legal custody. And it is here we can give guidance on what situations may merit consent. While we could not possibly go through every scenario with you, here are the more common situations where the parents may want to consider a consent provision:
Some parents may want significantly more added to the list and some parents may believe the above is too much. Every case is going to be different.
When it comes to joint legal custody, we believe specific is best unless there is a compelling reason to be more vague about it. And we rarely find that compelling reason.The reason we prefer and recommended to our own clients the joint legal custody terms be specific is so in the event of a disagreement, there is no confusion as to whether consent is or is not required. While it is possible the parents may never have a disagreement despite their divorce or separation, how many parents fit into that category? The answer is likely less than 50%. It is usually not a question of whether the parents will have a disagreement over issues such as joint legal custody at some point but when and with what frequency?