Joint Legal Custody Orders

Does joint legal custody always require consent?

Some parents believe everything related to a child requires consent if the parents have joint legal custody. Other parents believe joint legal custody does not mean consent but only requires the parents to talk about issues before either makes the decision. Technically, both of these are correct and incorrect. Much depends on how specific the joint legal custody order gets. For example, let us look at Family Code 3083. This code section states:

“In making an order of joint legal custody, the 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.”

So as you can read, the court must be specific regarding the situations where both parents must consent. Does that really happen? Unfortunately, it does not. We have read plenty of court orders that state nothing about situations where the parents must obtain the other's consent before taking action.

Fortunately for you, you are here and reading about joint legal custody. And it is here we can give guidance on what situations may merit consent. While we could not possibly go through every scenario with you, here are the more common situations where the parents may want to consider a consent provision:

1. Enrollment in or leaving a particular private or public school or daycare center
2. Participation in particular religious activities or institutions
3. Beginning or ending psychiatric, psychological, or other mental health counseling or therapy
4. Selection of a doctor, dentist, or other health professional, except in emergency situations
5. Participation in extracurricular activities
6. Out of country out-of-state travel

Some parents may want significantly more added to the list and some parents may believe the above is too much. Every case is going to be different.

Specific orders are best for joint legal custody

When it comes to joint legal custody, we believe specific is best unless there is a compelling reason to be more vague about it. And we rarely find that compelling reason.

The reason we prefer and recommended to our own clients the joint legal custody terms be specific is so in the event of a disagreement, there is no confusion as to whether consent is or is not required. While it is possible the parents may never have a disagreement despite their divorce or separation, how many parents fit into that category? The answer is likely less than 50%. It is usually not a question of whether the parents will have a disagreement over issues such as joint legal custody at some point but when and with what frequency?

We hope this was helpful to you in understanding joint legal custody under California law. Check out our more detailed review of joint legal custody in California to learn more.

More reading on legal custody...

Continue reading about legal custody with our pages on sole legal custody and modification of legal custody. They are linked below.