Overview of Joint Legal Custody with Primary Physical Custody

What is Joint Legal Custody?

Joint legal custody is the right and responsibility of both parents, jointly, to make decisions concerning the minor child. This includes such things as the school the child will attend, the religious upbringing of the child, the medically necessary vaccinations or other medical procedures the child will undergo, the extracurricular activities and associations of the child, etc. While parents are free to discuss with one another the issues impacting the decision they will make – and to agree directly on same – ultimately, if there is disagreement, an issue is likely to arise.
This is where the Presumption of Joint Legal Custody comes into play. The Presumption of Joint Legal Custody, codified at NCGS 50-13.2(c), states that: There is a presumption in favor of joint custody by both parents unless the court finds that joint custody would be detrimental to the (child) or to either parent .
Dissimilar to the "best interests of the child" standard found in other areas of North Carolina law, the Presumption of Joint Legal Custody requires a party seeking to limit the other parent’s decision-making authority to prove that joint legal custody would be detrimental to the child or the other party seeking to share parenting responsibilities.
While there are certainly instances where this can be proven it is less common than one might think. There are certainly situations, particularly involving abuse, neglect, or substance abuse where it is clearly and easily determined that limiting legal custody rights is in the best interest of the child. However, short of that, parties are generally presumed to have an equal right to participate in major decision-making in their child’s life.

Definition of Primary Physical Custody

When parents share equal rights and responsibility to make decisions affecting the child, they are said to have joint legal custody. However, that does not necessarily mean they also share equal physical custody. In fact, parents can have joint legal custody while one parent has primary physical custody.
Primary physical custody or sole physical custody means that a child resides more than 50 percent of the time with one of the parents. The child has frequent and regular contact with the other parent, but he or she spends the bulk of his or her time with the parent who the court determines should have sole or primary physical custody. This is the parent generally awarded the primary residential parent designation.
Both parents have joint legal custody of the child regardless of whether the child resides predominantly with one parent. Because of this, both parents still maintain equal rights to the care, custody and control of the child. They are entitled to access the child’s educational and medical records, communicate with teachers and physicians, attend parent-teacher conferences and participate in decision-making pertaining to the child’s education and healthcare.
Most custody orders designate a primary residential parent (also called a custodial parent) and a non-custodial parent. Orders typically specify a visitation schedule to dictate how the non-custodial parent will interact with the child. However, the provisions will always be subject to modification based on the best interests of the child.
The court can always grant visitation of the child to the non-custodial parent, so the visitation rights of that parent, who has less parenting time, do not technically fit under the definition of joint custody.

How Joint Legal Custody and Primary Physical Custody Interact

How Joint Legal Custody and Primary Physical Custody Work Together
The first thing to understand when dealing with custody arrangements is that the amount of time a child spends with each parent – the physical custody – does not dictate what rights the parents have when it comes to decision-making for their child. The majority of child custody cases in Illinois will end up with at least one type of joint custody situation regardless of how much time the child spends with each parent. With 50/50 being the "routine" parenting schedule, this means that most child custody court orders will include aspects of sole custody for certain decision-making along with joint custody.
When it comes to primary physical custody with joint legal custody, the typical arrangement is that there is one parent who the child lives with the majority of the time and a second parent that shares the decision-making powers with that parent. For example, they can share the right to make medical, education and extracurricular decisions. While that’s the most common way, it’s far from the only way. Another option includes that one parent is granted the right to make educational decisions while the other parent makes leisure time decisions.
The most common variations on this are:
Many parents share custody because they are both committed to raising their children together and both want to have an equal or maximize their time with their children. Both parents are also able to agree on the details on how to co-parent in a healthy manner. When parents are not able to cooperate reasonably to share decision-making and parenting time, the court may limit the rights of one or both parents.

Advantages and Disadvantages for Children

While joint legal custody with primary physical custody may be seen across the glassy windows of the courthouse as an ideal arrangement, the reality is often much different. Unfortunately, the child may be left to cope with a parent’s unwillingness to resolve issues amicably or without acrimony. This results in the child experiencing the detriments found in sole physical custody without the benefits of a second custodial parent. Emotional and Social: Children who have two engaged parents in their lives form strong attachments to both parents. These children benefit from contact with both parents daily and can develop skills, including behavioral, from the input of both parents. Children also experience reduced anxiety and other emotional issues when they have the support of both parents. Depending on the level of animosity each parent has for the other, this experience could also be detrimental to the child. A primary physical custody arrangement with limited involvement from the non-custodial parent may result in insecurities for the child, potentially displaying behavioral problems later in life. Emphasis should remain on keeping the animosity to a minimum and working with the other parent for the benefit of the child; otherwise, you may have a child caught in a custody war exposed to high levels of stress. Educational: Joint legal and primary physical custody provides the child with a sense of stability and security. With two parents involved, the child may have increased opportunities to focus on educational development and goals. Children with involved parents typically perform better academically, are more engaged, and participate in extra-curricular activities. On the other hand, a child with limited contact with the non-custodial parent misses many opportunities that can enhance their education due to the lack of involvement from that parent. When a custodial parent is required to assume the full responsibility of parenting, keeping up with school work, paying for extra-curricular activities, and analyzing homework on top of a full-time job, it can be very difficult to not reach the breaking point. The stress created by this situation can prove to be detrimental personally and occupationally. Otherwise, children with joint physical custody arrangements are presented with a well-rounded approach to education. These children are exposed to the unique views of both parents regarding the benefits of education. This exposure can help the child find educational goals while enabling them to meet their goals while minimizing family stress.

Dispute Resolution in Joint Legal Custody Situations

Disputes arising from joint legal custody can occur in several areas. First is the issue of who makes the final decision, and in most cases, the parent who has possession and control of the child the greater amount of time has the final decision-making authority with respect to the daily tasks. In other words, when the child is with one of the parents, that parent will most likely have the final say with respect to school, medical, dental, and related issues. This principle, however is more difficult to apply with respect to the big issues of life such as: In these areas, the parties must work together to reach a consensus. When they cannot, the decision will best be made by a Judge. In such situations , a petition can be filed asking the court to determine the issue. That brings us to the process of mediating the dispute. Mediation as a method of resolving disputes is generally a solid idea. The problem becomes when one party wants to mediate and believes that the other party will likely participate out of good faith, only to learn the other party refuses to attend. This often occurs when the parties have been embroiled in a vicious litigation. In those situations, it is typically more effective to ask the Judge to become involved in resolving the dispute rather than dragging the other party through the mediation process, which is very inherently unstable absent good faith participation by both parties.

Legal Aspects and Court Processes

Understanding Joint Legal Custody with Primary Physical Custody
In the state of Georgia, the presumption is that, where joint legal custody is ordered, the custodial parent shall also be granted primary physical custody. Further, if the court finds that it is not in a child’s best interest for parents to have joint legal custody, the court must award sole legal custody to one parent. In practice, Georgia Courts have traditionally set up a shared parenting timetable which ultimately means that the children spend equal amounts of time living with and being cared for by each parent. However, this does not mean that a child has to spend equal time with both parents. That is, if the parenting plan requires that the children spend 50/50 overnights with each parent, then you have equal parenting time.
The relevant Georgia statute is the "Child custody; preferences as to custodians; factors for consideration; award of joint legal custody" section of the Official Code of Georgia Annotated (O.C.G.A. § 19-9-3 – 1-5) In this article, I have only included the first part of the statute, which is the general custody purpose section explaining how Georgia Courts are to approach child custody cases, and the custody factors that the courts must take into account in deciding how to resolve legal custody and primary physical custody matters. In the next two articles in this category, I will discuss the second part of O.C.G.A. § 19-9-3, which is the statute that actually orders legal and physical custody arrangements.
The relevant portions of O.C.G.A. § 19-9-3 say the following:
"(a) The primary concern of a court in considering the issue of child custody is the welfare and the best interests of the child. The awards of joint legal and physical custody in appropriate cases are best for the children of this state.
(b) In any case in which the issue of custody is given consideration by the court, whether in a legall custody dispute or visitation dispute only or otherwise, the court shall consider and base its decision upon the following factors as to each parent or custodian:

(1) The love, affection, bonding, and emotional ties existing between each parent and the child;
(2) The capacity of each parent or custodian to give the child love, affection, guidance, and spiritual and moral upbringing, and their ability to provide for the child’s education by either financial or other means;
(3) The ability of the parents or custodians to communicate with and generally cooperate in matters relating to the child’s welfare;
(4) The psychological and emotional stability of each parent or custodian as well as any history of domestic violence or sexual abuse;
(5) The mental and physical health of each parent or custodian;
(6) The respective home environments proposed by each parent;
(7) The preference of the child, if the court deems the child to be of sufficient age, intelligence, and understanding to express a preference;
(8) The evidence of abuse by a parent or person seeking custody against the other parent or against a child;
(9) The home environment offered to the child and the promotion of nurturance and safety of the child; and
(10) The parent’s or custodian’s involvement in the child’s life, which may include but shall not be limited to participation in the child’s schooling, medical, family, and extracurricular activities.

(c) The list of factors contained in subsection (b) of this Code section shall not be considered exhaustive, but rather illustrative of best interests of the child factors.

Co-Parenting Strategies

Even when a child is with one parent for the majority of the time, there are many opportunities to develop and implement positive parenting skills. There will be birthday parties, extracurricular activities, school plays, award ceremonies, etc., where parents can communicate, collaborate, and support their child respectfully. As previously mentioned, and as any successful marriage demonstrates, successful parenting comes down to communication with your co-parent. While a calendar system can be helpful, avoiding nit-picking is essential . This means that while a parent should absolutely inform the other parent if there are changes in the schedule, reading too much into an email can be counterproductive. The last thing you want is to view a short, quick email with a question as some sort of attack, and vice versa. Approach each other with the understanding that you both want what is best for your child and use an even tone and healthy language choices that reflect this. Communication is key, but remember that you are a team, not adversaries. Some parents find that it is helpful to develop a parenting plan or easy-to-follow schedule that outlines the basic child-rearing decisions so that time-wasting disputes do not occur.