JOINT LEGAL CUSTODY

Family Code §’3083 directs that when a court orders the standard, preferred joint legal custody order:

"[T]he 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."

Thus, without more, joint legal custody means either parent may make the decisions that affect the health, education or welfare of their minor child. Without specifying otherwise, a parent, acting alone, could consent to cosmetic surgery for the child, change his or her school, or even change the child’s name.

So, a parent seeking joint legal custody should seriously consider specifying those decisions requiring mutual agreement. Examples include the following:

  • 1. Enrollment or termination of attendance in any public or private school.
  • 2. Participation in regularly occurring extracurricular activities.
  • 3. Non-emergency medical, dental and orthodontic, other than routine exams
  • 4. Participation in mental health counseling, therapy or treatment.
  • 5. Change in area of a child’s residence
  • 6. Issuance of a driver’s license.
  • 7. Issuance of a passport
  • 8. Body piercing, tattoos and extraordinary hair cuts
  • 9. Signing contracts on behalf of the child (for theatrical services. etc.).
  • 10. Nominated as a guardian ad litem (to litigate on behalf of the minor child)

Note too, that legal custody has statutory liabilities even if a parent having joint legal custody does not share physical custody.

Civil Code ’1714.1
says that a parent in custody and control of a minor is liable up to $10,000.00 in damages resulting from acts of the minor which cause death, physical injury or property damage.　
Education Code ’48904
provides for a parent’s liability for a child’s willful misconduct or vandalism of school property up to an amount of $7,500.00.　 Penal Code ’490.5(b) provides that "a parent having custody or control of a minor" is jointly and severely liable with the minor for shoplifting or theft of books from a library. lf both parents have authorized a minor to acquire a driver’s license, both parents may share some responsibility if the child has an accident.

Non-custodial parents should also be aware of Family Code §3025 subsection (1):

"Notwithstanding any other provisions of law, access to records and information pertaining to a minor child, including but not limited to medical, dental and school records shall not be denied because such parent is not the child’s custodial parent."

A non-custodial parent has an absolute right to be made aware of and to acquire information regarding a minor child’s medical and school circumstances. The non-custodial parent need not accept a statement from, for example, the child’s physician or school administrator, that "I’m sorry; we cannot give you this information.  You do not have legal custody."

Call NDA. Make an appointment. What do you want joint legal custody to mean in your family?