What is Meant by “Joint Legal Custody”

To the inexperienced practitioner, legal custody is an afterthought. These attorneys will assist their clients in fine-tuning the physical custody provisions of their judgment or order, but pay little attention to the details of the legal custody order — sole or joint; decision-making to require agreement or not?

The recent United States Supreme Court case of Elk Grove USD v. Newdow (6/14/2004) 04 DJDAR 7022, illustrates the significance of the legal custody portion of a custody decree. In Elk Grove, the parties had a California custody decree which provided for joint legal custody. However, the decree also provided that if a dispute arose, the mother retained the final decision-making ability.

As has been well-publicized, the father wanted to file a lawsuit challenging the requirement of his daughter’s school district that the Pledge of Allegiance be recited, on the ground that the phrase “under God” was in essence the State mandating a particular form of religious practice. The mother refused to participate in or agree to the lawsuit.

The Elk Grove plurality deemed this difference between the parties a dispute over a legal custodial issue. Accordingly, in its plurality decision, the United States Supreme Court held that because the mother, pursuant to court order, held the ultimate decision-making authority in the event of a dispute, the father was legally incapable of deciding to file a lawsuit regarding this issue and lacked standing. That plurality opinion stated:

We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court. [04 DJDAR at 7025]

Thus, the Supreme Court was able to avoid the church/state issues presented by this case and left a discussion of same to the concurring opinions.

What are the implications of Elk Grove for the family law practitioner? Clearly, an award of “joint legal custody,” absent more, is now inadequate to preserve a parent’s right to participate in decisions which that parent believes are important to the best interests of the child.

This concept was previously suggested in the case of In re Marriage of Neal (1979) 92 Cal.App.3d 834, which observed that an award of joint legal custody was “ephemeral and essentially meaningless,” when one party has been awarded sole physical custody, but both parents have been awarded joint legal custody.

Elk Grove has given much added weight to the suggestion of the Neal Court. It is now incumbent upon any parent who is seeking meaningful joint legal custody to insist that the parameters of joint legal custody be articulated by the trial court..

Joint legal custody itself is defined in Family Code § 3003, which provides:

Joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.

To give meaning and “teeth” to an award of joint legal custody, counsel should look to and invoke Family Code § 3083, which 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.

In essence and in substance, Family Code § 3083 provides that if no one specifies the particulars of what joint legal custody will mean, there is a “default”. The default status is that either parent may make the decisions with reference to the health, education or welfare of the minor child. Hence, either parent could consent to cosmetic surgery for the minor child, acquire a driver’s license for the minor child, change a child’s major in school, change the child’s name, or litigate whether the child should recite the pledge of allegiance in school referencing the word “God” Given the randomness of people’s action, the result of such unilateral activity can be rather chaotic.

But merely citing the court to Family Code § 3083 is not sufficient. Counsel and client should be in a position to articulate the circumstances and areas in which joint consent should be required. These circumstances include, but are by no means limited to:

* Major medical decisions (excluding emergencies).
* Change of school.
* Change of academic pursuits within school (i.e., change of major, etc.).
* Beginning a course of psychotherapy.
* Cosmetic surgery.
* Enrollment in extracurricular sports activities (contact football, hockey, judo, etc.).
* Signing of report cards.
* Acquisition of passports.
* Signing contracts on behalf of the child (for theatrical services, etc.).
* Signing for the driver’s license of the child.
* Being nominated as a guardian ad litem to litigate causes of action on behalf of the minor child (as in Elk Grove).

The above list is by all means not complete. Practitioners should discuss the parameters of legal custody well prior to the date of the custody hearing, and not discussed literally on the “courthouse steps”.

In addition, counsel should apprise the client that, along with the many benefits of joint legal custody, come certain statutory liabilities which may accrue to a parent who shares joint legal custody, although that parent does not share physical custody.

By way of only one example, Civil Code § 1714.1 provides that a parent in “custody and control” of a minor is liable up to $25,000.00 in damages resulting from acts of the minor which cause death, physical injury, property damage. Similarly, 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 $10,000.00. And, Penal Code § 490.5(b) provides that a parent having “control or custody” of a minor can be jointly and severally liable with the minor for shoplifting or theft of books from a library.

While these imputed liability sections speak to liability based upon presumably physical custody an argument could be made extending same to a joint legal parent. If both parents have authorized a minor to acquire a driver’s license, both parents may share some responsibility with reference to that minor should same cause an accident.

As Elk Grove suggests, “legal custody” may have a broad, wide ranging impact.

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