Let’s look at each of the “major” decision areas, beginning
with religion. For many parents, raising
their children in their particular religious beliefs and practices is
very important to them as parents. Their
religious beliefs are fundamental to who they are, and they want their
children to share in those beliefs. So, if you
have legal custody, and you are a Protestant Christian, then you have
the legal authority to require the other parent to only take the child
to your church, and only allow religious instruction consistent with your
beliefs, right? Actually no.
In life, there is an enforced pluralism of religion to the extent that
we have to publicly respect other people’s right to their own religious
viewpoints, and in divorced families, there is also enforced pluralism.
If you are Buddhist, and don’t celebrate
Christmas, you are not going to be able to stop your ex-spouse from Christmas
rituals, no matter how much they offend you.
If you celebrate Christmas, you don’t necessarily get all of the
holiday time, regardless of whether the other parent celebrates the holidays.
Religious practices are usually considered part of the day to day decision
making that each parent does. Courts may make religious accommodations
on a case by case basis, depending upon the impact on the child, but that is about
the child’s issues, not about allowing only one point of view. For
example, the one case on religion allowed
for a modification of parenting time to allow the child to attend church
each week with the primary parent, but only because of the child’s
psychological needs at that point in time, and allowed additional parenting
time to compensate. Even larger issues, such as whether a child should
be allowed to be baptized, or become a member of a church, is not defined
legally and often a significant source of contention between parents.
Medical decisions are a little clearer. The legal custodial parent has
the authority to select the medical care providers, and to make decisions
such as whether the child should have surgery, or have medication prescribed
by a doctor. This general statement is not particularly helpful in day
to day practice. If Dad is the custodial parent, and Mom has the child
on alternating weekends, who makes the decision on Monday morning if the
child is too sick to go to school? Who makes the decision if the child
should go to the doctor? Judges and lawyers have very different viewpoints
on this subject. Some say that “of course” a parent should
be able to make a decision as to whether the child is too sick to go to school,
and either parent should decide if the child should go to the doctor.
Some say that if parents do not have
agreement on medical decision philosophy, then the purpose of having legal
custody to one parent is to have consistent medical decisions made. This
can have a dramatic impact on the child. For example, one parent doesn’t
agree with medication being given for attention deficit disorder. Even
if the other parent is the custodial
parent, and has doctor prescribed medication, if the other parent then
has the authority to decide to take the child to the doctor, then presumably
the other parent can then tell the doctor to stop prescribing medication.
The doctor is not sure what to do, or who has legal authority. Does the
non-custodial parent have the authority to get medication for an ear infection
but not for attention deficit disorder? If there is a significant amount
of parenting time to both parents, then inconsistency of
medical care can be a problem. For example, in one case, one parent was
having the child’s teeth straightened by
the dentist, and the other parent was taking the child to another dentist
to undo the first dentist’s work, making the child’s mouth
a war zone.
Educational decisions are both clear and unclear. Generally, the legal
custodial parent has the
authority to select the school that the child attends. There are many
educational decisions beyond
the school, however. Who decides if the child needs to have special tutoring
in spelling? What if the child is skilled at math, and one parent wants
to advance the child into the next math grade, and the other parent wants
the child to stay with the child’s social group? What if one parent
doesn’t believe that 5 days a week of school are necessary for the
kindergarten child, and makes the decision not to take the child to school
on alternating Mondays? That’s ridiculous, you say. That could never
happen. Trust me, I’ve had that case.
The only way to have some of these kinds of questions answered is to have
a very specific parenting plan in a court order. You can put in the court
order that the parent is required to take the child to school every school
morning, and to
notify the custodial parent if the child is sick so the custodial parent
can make a decision. You can put in a court
order that the noncustodial parent is required to give the child medication
prescribed by a doctor. The problem
with these kinds of specific parenting instructions is that you cannot
foresee every kind of parenting problem that could conceivable come up,
and many judges will not make decisions on these kind of parenting decisions
unless there is a
specific problem in front of the judge, and the judge is convinced that
there needs to be a specific rule. Judges do
not want to micromanage parenting decisions, because presumably parents
have the skills and ability to make their own parenting decisions. This
has the regrettable result that the stability that children need is lacking
for months and sometimes years, while the problem is developing, and children
become an experiment to see the impact of different decisions by different parents.
As you are negotiating your divorce, and you are thinking about what is
important to have stability and clarity, keep in mind that if you want
to have it enforced by the court, then it needs to be specifically in
the order. If it isn’t in a court order, you
have no idea if your parenting authority will be enforced in the future.
Even if the parenting responsibilities are
specifically set out, in order to enforce the parenting plan, you have
to plan on taking the other parent back to court for a court order, which
takes time, money and emotional energy.
The only reasonable conclusion you can come to is that there are no clear answers as to most parenting responsibility decisions, and what legal custody means in any given decision is constantly shifting. Your best solution? Start learning negotiation skills and nonengagement skills so that you can avoid the situations if at all possible, and if you can’t avoid the conflict, accept that you might be developing a long term relationship with your lawyer.