Divorce, Legal Custody, and Major Life Decisions for a Child

A considerable amount of confusion surrounds child custody in divorce, post-divorce, and paternity proceedings. Specifically, there tends to be what might be called an amorphous or vague belief that child custody refers to "one thing." In reality, in all 50 states, child custody is broken down into two essential components:

• Physical or residential custody
• Legal custody

Physical or residential custody involved the determination of where a child will reside during divorce, post-divorce, paternity, and related court proceedings. Legal custody is the determination of which parent will be vested with authority to make major life decisions on behalf of a minor child.

Physical and legal custody can also take a number of different forms. For example, physical and legal custody can be joint, shared, or sole.

In considering legal custody, there are three overarching categories in which major life decisions tend to be made. These are:

• Healthcare
• Religion
• Education

One of the most significant areas in which parents are called upon to make decisions for their children is the realm of healthcare. Of course, if a child ends up in a catastrophic medical situation, serious decisions need to be made regarding courses of treatment. This type of situation can even result in a decision as to whether or not extraordinary means should be utilized in the care of a child.

As well as these occasions in which major medical, even life-sustaining, decisions need to be made, parents are also required to make more pedestrian healthcare decisions, including choice of doctor and matters pertaining to vaccinations.

Religion is the second of three major categories of parental decision making that come into play when legal custody is at issue. These decisions can involve everything from a choice of faith to follow to whether or not a child should attend worship services to ascertaining at what age a young person will be granted more latitude when it comes to decision-making in regard to faith and religion.

Finally, the third primary category in which parents are called upon to make decisions for a minor involves education. This includes everything from choice of schools to making a decision regarding a child's participation in sports or other extracurricular activities. Whether a child should undertake some type of private tuition also falls within this broad decision-making category.

Private schooling oftentimes becomes a point of contention between divorcing or divorced parents. However, there is an array of other notable issues associated with education that are impacted by decisions associated the grant of legal custody.

A court called upon to determine how legal custody will be ordered in a divorce, post-divorce, paternity, or similar type of proceeding applies a specific judicial standard. This is known as the best interests of a child standard and is used on all 50 states.

The application of the best interests of a child standard is undertaken on a case-by-case basis. A judge examines the specific facts and circumstances of a case in order to ascertain what type of legal custody determination will protect and advance the best interests of a child. (The court does the same when it comes to making a determination regarding physical custody as well.)

Beyond a consideration of the primary categories of issues in which decisions need to be made on behalf of a child, how legal custody will be determined between parents is crucial. As mentioned previously, legal custody can be jointly held or shared between parents or one parent can have sole legal custody.

In an ideal world, both parents share in making major life decisions on behalf of their children during and after divorce. The best interests of a child are best served when parents are able to communicate and jointly made decisions regarding their offspring in a reasoned manner.

A person should consult legal counsel with additional questions about legal custody. The same holds true more generally for any individual anticipating a divorce or other legal process in which child custody will be an issue. As a matter of common practice, a divorce attorney will schedule a free initial consultation with a prospective client. If you have any questions concerning child custody, contact the Law Offices of Peter Van Aulen at 201-845-700 for a free initial consultation.