DEFINING CHILD CUSTODY Part II

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.

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