Co-parenting and Decision Authority (A.K.A. Legal Custody)
By Teresa Harlow
At the beginning of this series, you were offered insights on what to include in your co-parenting plan. So far, we’ve went deep on adopting an empathetic mindset, living arrangements, parenting time, finances, and communication. This month, we’re tackling co-parenting decision authority, also referred to by legal professionals as legal custody of the child. This is different from physical custody which refers to the time a parent spends with the child in their care. Legal custody concerns major decisions that must be made for your child.
Common areas in which parental decision authority is clarified among divorcing parents include education, medical care, and religious matters. Authority can be granted to one parent or to both parents jointly and can vary by area of concern. For example, one parent could be responsible for education decisions while the other is responsible for medical decisions. Or one parent may have sole authority on religious matters but share other decision authority jointly with a co-parent. For high conflict couples, this section of the parenting plan can get pretty contentious and bring you to conclude that professional help is needed from an attorney, mediator, or co-parenting coach.
So let’s look at the types of decisions which fall under each category of legal custody.
Co-parenting Decision Authority: Education
When it comes to education, here are a few decisions parents will make at one point or another that should be considered when deciding on your co-parenting plan legal custody designations.
Where a child will be educated – both type of school (e.g. public school, private school, on-line education, charter school, home school, etc.) and location (i.e. which parent’s address is used to determine school location).
How the school regards each parent’s decision-making authority and communicates with each of you: Share with school administrators and teachers both the physical and legal custody details of your agreement so that they understand the rights of each parent. Also get confirmation of how school communications will be distributed to each parent. Can they effectively communicate everything to both or will one parent bear responsibility for sharing information with the other parent? Will you attend parent-teacher conferences together or require separate meetings with the teacher?
Transportation: Who is responsible for transporting the child to and from school and school-sponsored events? If there is a stepparent, stepsibling, or others who provide transportation, be sure to spell out who must approve these other parties to transport a child?
Educational expenses: Who makes decisions regarding educational expenses and who is responsible for paying? These two questions could have different answers. Financing your child’s upbringing, including their education, should be addressed in the financial section of your co-parenting plan and any child support order filed with the courts. It can also be reiterated in this section to provide for easy reference and additional details.
Uniforms: Who is responsible for selecting the school uniforms your child will wear? Who is responsible for paying for them? Again, be sure to include financial responsibilities in the financial component of your co-parenting plan.
Curriculum: Parents could designate that one or both parents have decision-making authority regarding curriculum the child will pursue.
Higher Education: In addition to who pays for college, trade school, or some other secondary education or training programs for your child, you may wish to designate who may make decisions concerning school choice and curriculum or if this will be a joint decision between both parents. Of course, if your child is of majority age at the time they enter college, these decisions will rest with them.
Other items to consider: Who can make decisions on choice of tutors, school-sponsored extra-curricular activities, field trips, and school lunches?
Co-parenting Decision Authority: Medical
Here’s a quick list of decisions to consider surrounding your child’s healthcare
Insurance: Who will select and it? Who will pay premiums, coinsurance, and deductibles? Again be sure financial aspects are covered in your child support order if you have one and in the financial section of your parenting plan.
Healthcare Providers: Who chooses them? Who attends which appointments? What happens if one parent becomes dissatisfied with a care provider. Do the agreements you have concerning medical decision authority extend to dental, vision, mental health, and substance abuse programs?
Emergency Medical Treatment: Do both parents have the right to be present and make decisions concerning emergency care. May one parent make decisions without consulting the other?
Non-emergency Medical Treatment: How will decisions on preventive care, vaccines, and sick-care treatments be made? How are communications between parents and providers concerning these matters to be handled?
Co-parenting Decision Authority: Religion
Faith Designations: Will children be brought up according to teachings of a particular religion or religions (i.e. in cases where parents are of different faiths)?
Faith-based activities: Will a child be allowed to participate in faith-based activities when with both parents?
Faith-based restrictions on diet and/or dress: Will such restrictions apply at one or both parents’ homes?
Faith-based holidays and traditions: What holidays and traditions will be observed in each home. If only one parent observes a particular holiday or tradition, how may this affect the parenting schedule?
Faith-based practices: Are there other customs, religious practices, morals, or core values that the child will adhere to and if so, will it apply in both parents’ homes?
Co-parenting Decision Authority: General Wellbeing
It is important to be aware, particularly if your child spends time with the other parent, that decisions regarding your child’s upbringing that are not otherwise spelled out in your separation agreement and that don’t rise to the definition of a major decision (e.g. medical, educational, religious) are usually made by the parent who has day-to-day care of the child. In other words, on days you don’t have your child, the other parent has authority to decide such things as your child’s bedtime, clothing, and hairstyle, what movies or TV they can watch, and what social activities they are involved in – so long as these activities are legal, safe, and age-appropriate for the child and do not conflict with other agreements set forth in your parenting plan.
Dealing with Co-parenting Legal Custody Conflicts
According to Our Family Wizard, “In some states, to prevent stalemates between co-parents who share joint legal custody, parenting agreements may grant one parent with final decision-making authority. Typically, final decision-making authority does not grant that parent the ability to unilaterally make decisions about their child's upbringing; however, when at an impasse, the parent with final decision-making authority can use their best judgment to choose a solution to the problem.”
Of course, you can always go back to court or engage a mediator if you can’t work it out on your own. In the case of the courts, just realize that you are conceding decision-making to the courts. Plus there could be substantial cost from attorney fees and court proceedings. A mediator will usually cost less and work with both parents to help them reach an agreement of their own design.
If you do end up in court, they will seek an outcome that is in the child’s best interest. How do they determine this? In cases of domestic violence, a special-needs child, or parents who live far apart, courts tend toward sole legal custody for many decisions. Outside of these extraordinary circumstances, they consider the conduct, willingness to cooperate, and moral standards of the parents. They will look at the parenting history, the quality of relationship between parent and child, and seek to maintain as much consistency in the child’s life as possible. Bear in mind, this last one could be at odds with your interests.
These Decisions are NOT Major
That doesn’t mean the list below is not important. Just that the courts won’t typically help you settle these things if there is no evidence of physical, emotional, or mental harm to the child. Sure you can get into these details in your co-parenting plan, and it may give you leverage with the other parent down the road. But your best bet is to strive to communicate effectively with your co-parent, discuss concerns, try to work them out, and then let go of things you can’t control.
Diet (outside of dangerous options or anything that conflicts with religious practices to be observed)
Exercise
Technology use including TV, social media, games, phones, etc.
Attire, hair, makeup, ear piercings
Friends
Social activities and hobbies
Bedtime, curfew, and other schedules within a home
Final Thoughts
Conceding any part of your parenting authority to another parent can be difficult and lead to adversarial interactions. Do your best to lay out the details in your co-parenting plan in a way that will allow both parents to participate collaboratively in parenting decisions. The more you invest in this effort, the more you’ll benefit from it down the road.
For help creating a parenting plan, learn more at TeresaHarlow.com/CoparentCoaching/. Also check out her #1 bestselling book Combative to Collaborative: The Co-parenting Code available on Amazon.