Do you have joint legal custody? Do you really know what it means?
We are consistently amazed how often parents violate the other’s joint legal custody rights and even more surprised how often the other parent lets it happen. It’s almost as if joint legal custody in California is something that is ordered but not taken seriously or, at least, seriously enough.
We have written on the subject of child custody in the past. But what this article does is go into far more detail on two issues. First, what joint legal custody really means from a practical perspective and what parents should do when their rights are being violated.
First, let’s get to know the rules.
Joint Legal Custody in California – What Does It Mean?
Rather than give you the boring, statutory definition of joint legal custody that may cause you to respond with “what?”, I will paraphrase it. “Joint legal custody” generally means both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of the children. Simple enough? “Share” is the key. What are parents sharing? The “right” and “responsibility” to make decisions. That is at the heart of joint legal custody in California.
Some of you may state, “wait a minute, I have to run everything by the other parent?” No. Generally, the parent who has the physical care of any child at any given time shall have the “routine” decision-making rights and responsibilities during those periods of time for that child. The key word there is routine. Day to day stuff (what to eat, when to go to bed, etc.) don’t need sharing. Each parent takes care of the child consistent with the child’s best interest during that parent’s visitation time.
Joint legal custody does not mean that consent is required for everything. Sharing does not always equate consent. Sometimes consultation between parents is in order. Other times, consent is required for all or some things. Does the court have discretion? Here is how Family Code 3083 reads:
Family Code 3083. 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.
If that sounds like the Court can designate some things as requiring mutual consent and others not, yes, you are correct. How does your court order read?
Here is how we like ours to read but there are exceptions. Remember that every case can be different so what we are listing here may not be your court order or your situation at all. These are just examples of joint legal custody provisions in California. These also aren’t exclusive but they are common based on our experience.
All major decisions pertaining to health, education and day care shall be made jointly by the parents. No prior consultation is required between the parents regarding emergency medical or dental treatment, routine checkups, or minor illnesses. However, the other parent shall be notified immediately in the case of an emergency. A sharing of routine health information is encouraged.
Pretty self explanatory right? Most parents are good about sharing medical information but education is a different story. Joint legal custody in California, unless a court order carves out an exception, does not permit one parent to have authoritative control over education. Both parents should be listed as emergency contacts. Both parents should have equal access to records. Speaking of records…
Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the children’s custodial parent. (Family Code § 3025).
This is an often abused joint legal custody provision. We explain later how the parent being unlawfully deprived of this information should deal with it.
Each parent shall keep the other advised within a reasonable time when the minor children visit with the doctor, hospital, or place of medical treatment (excluding checkups), including the date of the visit, the name and address of the doctor, the condition treated, the results of the treatment, and description of any follow-up appointments made.
Right to the point. Share information. Regardless of what one parent may think of the other from a personal standpoint, neither can divorce their children. Sharing information is an integral part of joint legal custody in California.
Each parent is responsible for keeping themselves advised and for advising each other of all school, athletic, and social events in which the children participate including, but not limited to school report cards, school meeting notices, requests for school conferences, notice of activities related to the children, and order forms for school pictures.
This is also an often abused joint legal custody provision. More later on how to fix this.
Each parent shall keep the other advised at all times of his/her current residence and business address, telephone numbers (home, cell and work), the children’s school and daycare, and the location of where the children will be spending any extended period of time (two days or more)
This is how we write them but, like all the provisions here, some lawyers have different drafting styles. Regardless, moving home or work addresses or changing numbers has a direct effect on co-parenting and joint legal custody in California. It’s hard to co-parent when you can’t find the other parent.
Each parent is to provide the other with the address and telephone number at which the minor children reside. A parent shall notify the other parent if the parent plans to change the residence of the children for more than thirty (30) days, unless there is a prior written agreement to the removal. The notice shall be given before the contemplated move, by mail, return receipt requested, postage prepaid, to the last known address of the parent to be notified. A copy of the notice shall also be sent to that parent’s counsel of record. To the extent feasible, the notice shall be provided within a minimum of forty-five (45) days before the proposed change of residence so as to allow for mediation of a new agreement concerning custody. (Family Code §3024).
This provision can vary from one order to another so you should definitely check yours. The point is, the subject of changing the children’s residence is serious and requires, at a minimum, consultation and approval of the other parent when there is joint legal custody. This is especially true and concerning about moves that directly impact the visitation schedule.
Neither parent shall enroll the children in activities which require a commitment from the other parent or interfere with a previously agreed upon or Court ordered schedule without mutual approval.
If we had a nickle for every time we heard a story about how one parent deliberately planned an activity for the children on the other parents’ custodial time, we would have a lot of nickles. Joint legal custody in California, absent a stated objection, does not allow one parent to just pick up and move away.
Neither parent shall submit the children to any psychological/psychiatric testing or evaluation or to any extended course of medical, dental, orthodontic, psychiatric, or psychological treatment/counseling without consultation with one another and consent which shall be in writing
This is similar to the medical provision. Putting a child into therapy is a big deal and requires parental consent.
Both parents must consent and/or Court authorization is needed before changing of the children’s surname, obtaining a passport or driver license, and approving underage marriage or enlistment in the military
Self explanatory again, right? You would be surprised how often this is violated.
The parent filling out any required forms shall list the names of both parents and their telephone numbers on all school and extracurricular cards/forms as well as with treating professionals and insurance carriers
This goes back to sharing information and, as we all know by now, sharing is not only caring…it’s the law.
Is that all of them? No. There are provisions about religion (and not changing a child’s religion without consent) as well as many others. We have hit some of the most common rights related to joint legal custody in California.
Now that we understand the more common ones, let’s talk about how to remedy violations
Joint Legal Custody in California – How Does a Parent Deal With Violations?
What we are laying out below are suggestions.
They are not gospel.
Some people may want to be more aggressive than this.
Some people may think this is too aggressive. What is right for you may depend on the facts of your case.
That is why we are here for an informative, initial consultation.
Step 1 – Communicate with the violating parent.
It’s often a bad idea, absent an emergency, to just rush into court. Family law judges frequently ask, “did you two try to work this out?” If your answer is, “no, your honor, I didn’t want to speak with ____ (fill in the other parent’s name)” you will likely get a scowl and possibly not a favorably ruling.
Communicate means exactly that. Pick up the phone and call (unless you have a restraining order against you, in which case you will need your lawyer to handle the call). If the other parent won’t answer the phone, email him or her (again, so long as you don’t have a restraining order). If you try and fail, at least you tried and you can let the court know you tried.
Step 2 – Get the issue resolved with the third party in control of the information
Medical provider, school, therapist, whomever is directly involved in the issue with the other parent needs to know you have joint legal custody rights.
For example, the school refuses to give you information? Take your court order for joint legal custody in and show it to the principle.
The doctor’s office won’t release the medical records? Take in your court order and show them.
Just because the other parent throws up roadblocks to sharing information doesn’t mean you should sit idly by and take it or rush to court. You may find yourself saving a lot of time and money if you deal with the third party directly.
Always make sure you are professional, calm and non-threatening. You have a court order for joint legal custody, right? Then there is no reason to get aggressive. Just stick to the facts.
Step 3 – Court intervention
Step 1 and/or step 2 don’t work and you should go to Court. You have a lot of options here. You can file a contempt action against the other parent. You can seek an order for modification of legal child custody, taking legal custody away from the other parent. You can request attorney fees. There are a whole host of options available to you when your joint legal custody rights in California are violated.
Got questions? That’s why we are here. We offer an initial, affordable strategy session to discuss your specific case and questions. Our firm represents clients in Orange County, Los Angeles and each of the other five Southern California courts. Contact our experienced child custody attorneys today.