What is Sole Legal Custody
Sole legal custody, simply put, means that one parent has exclusive decision-making authority over the children. Sole legal custody should not be confused with physical custody where both parents may have legal decision-making authority. Furthermore, sole legal custody does not mean that the children are going to be with you more than 50% of the time. In fact, oftentimes it has the opposite effect where the children live primarily with the other parent more than 50% of the time.
Many people who have sole legal custody are often surprised to find out that having sole legal custody means very little in terms of who actually has parenting time with the children. The purpose of sole legal custody is to give one parent the ability of making major decisions for the best interests of the children. Once the decision has been made, the other parent usually has the right to object but ultimately whether a decision is going to be made or not is within the control of the custodial parent .
In terms of what to include in a joint parenting agreement, many times the joining of sole legal custody to joint legal custody provisions is unnecessary. This is because unless there is an objection from the parent with 50/50 physical custody, the unilateral decision of the parent with sole legal custody is going to be made. Alternatively, if the parties cannot agree, then it becomes a matter of whether or not the other parent wants to initiate some sort of a motion to change things. Often times parties who have 50/50 physical custody have specific provisions for how decisions need to be made before unilaterally deciding on their own.
In terms of practical application, many have it that the parent with 50/50 physical custody has the children primarily during the weekdays and the parent with sole legal custody has them on the weekends. Many parents who share sole legal custody agree to this arrangement because the children understandably do not want to be separated from their primary parent for any longer than necessary. If parties cannot agree however, the arrangement could be essentially equal from a time perspective.
Parental Rights versus Custodial Rights
Parental rights and custodial rights are distinct from each other. Parental rights refer to the authority to make major decisions for a child. Custodial rights, on the other hand, pertain to the authority to make day-to-day decisions for the child. In this sense, sole legal custody does not end parental rights, but it can affect the way that parental rights are exercised. A parent with sole legal custody of a child has the authority to make decisions that have a major impact on the life of the child. This may be one factor in an eventual decision regarding parental rights. That is, when parents are deciding who should get primary physical custody, their decision on who gets sole legal custody can be a component of the ultimate decision because having sole legal custody may limit or eliminate decisions that the non-custodial parent could otherwise make.
Termination of Parental Rights Associated with Sole Legal Custody
However, unlike a situation where a parent is ever granted sole legal custody over a child, if a court terminates a parent’s rights to a child in a proceeding to do so or in adoption proceedings, there is no longer a legal parent-child relationship between that purported parent and the child pursuant to Indiana Code 31-19-18. Here is the statute: IC 31-19-18 Legal father for purposes of adoption Sec. 18. (a) If one (1) of the parents whose consent to the adoption is required under this chapter is deceased, legally incompetent, or has abandoned the child within the twelve (12) months preceding the date on which the petition to adopt is filed, the father of the child who meets the definition of a "legal father", as defined by Indiana law, need not give consent before the adoption may be final. (b) If either: (1) neither parent meets the definition of a "legal parent" or a "legal father" as defined by Indiana law; and (2) one (1) or more of the following conditions are met; the person who would otherwise have constituted the legal father of the adopted child under Indiana law, but who neither meets the definition of "legal father" nor falls within the category of persons required to give consent under this chapter, shall be deemed to have abandoned the child for purposes of this chapter: (1) The putative father; (2) The legal mother; (3) Another agency of the state or local unit of government in which the child was born or was abandoned, or in which the child is found and for whom consent to the adoption is required; or (4) A husband of the legal mother. (c) This section shall apply only to adoptions completed after June 30, 1992. As added by P.L.1-1997, SEC.17. My mother recently told me that she thought that sole legal custody means you no longer have any rights to the child. She told me a friend told her that. Errors like this often start with a wrong starter. There is a baby with a father and a mother. That child is born with legal parents (despite what they did or did not do). If one goes for legal and physical custody, the matter and outcome of custody is separate from a termination of parental rights. When we approach a legal custody determination, it is not a matter of whether either parent will have or retain rights to the child. There is an entire separate statute and body of law for parental rights termination. There is an entirely separate statute and body of law in adoption proceedings. While both statutes and bodies of law have been amended to work together and arguably are designed to fit a tidy little puzzle; nonetheless, a legal custody determination is a separate proceeding entirely from that of a termination of parental rights.
Conditions for Termination of Parental Rights
The law provides a wide range of parental rights when it comes to the custody and care of their children. These rights are extensive and are meant to ensure the welfare and best interests of the children. However, in some cases, these parental rights may be terminated altogether. The federal Adoption and Safe Families Act (ASFA) has very specific requirements for when a parent can have their rights terminated, each of which is evaluated on a case-by-case basis:
If a parent has committed a felony and is imprisoned, that parent’s rights may be terminated.
If the court finds that the parent injects drugs into the child.
If the parent is held liable for sexually assaulting a child.
If the parent causes abuse or neglect to the child, their sibling or any other minor.
If the child has been abandoned.
If the parent causes any injury to any minor.
If the other parent has a chronic and severe substance-abuse problem that does not allow him or her to care for the child.
If the parent has a chronic, severe mental illness, emotional disorder or developmental disability that restricts him or her from caring for the child.
If the child has been in foster care for at least 15 out of the last 22 months.
If the parent is unable to provide care for the child even with help from others.
If certain criteria applies to an Indian child as defined by the Indian Child Welfare Act (ICWA).
Because these reasons are so specific, it is rare to find a situation in which all criteria is met. If the criteria is met in a particular case, the court must give a written notice to the parent regarding the intention to terminate their parental rights.
Sole Legal Custody and Parental Rights in Law
Understanding the legal implications for the non-custodial parent of children in a divorce proceeding is important to the best interests of the children involved. If custody is granted as sole legal custody to one parent, that parent has exclusive control over all matters involving the children and the non-custodial parent has no rights or decision-making ability whatsoever. The non-custodial parent, of course , does retain the right to a visitation schedule and must be promptly notified of any medical emergencies or school events. Portions of the divorce decree can specifically address these issues and should be reviewed promptly so that there are no violations of the divorce agreement and the rights of the non-custodial parent are honored. Sole legal custody can, and sometimes does, limit other parental rights such as the right to make medical decisions. It is extremely important that the non-custodial parent obtain legal representation immediately if awarded sole legal custody of children in a divorce proceeding.
Detriment to the Child and Parent/Child Relationship
When only one parent is awarded sole legal custody, it is generally the case that the relationship between that parent and the child is stronger. While the spouse with sole legal custody will usually have the prerogative to determine how important the person’s religion is going to be in the life of the child, the Court has the option to require some kind of a parental consultation when it comes to whether or not religious instruction is going to be given to the child.
The law in this area was significantly affected by the 1999 case of Williams v. Lee — a decision by the Maryland Court of Appeals that stated, "sole legal custody does not automatically diminish the effort required of the custodial parent, nor does it eliminate the need to nurture and develop the relationship between the non-custodial parent and child." If one parent has sole legal custody, the child has the right to continue to have a parent-child relationship with the non-custodial parent, "constant communication and encouragement from the custodial parent, rather than simply the absence of unreasonable restrictions or bans on contact." Such a relationship, the Court said, "is vital" to the emotional well-being of a child.
Custody Modification
Children are constantly changing and so are parental circumstances. With that, we will review the future ability to modify a Sole Legal Custody Arrangement. Importantly, the former custodial parent would be statutorily (or by virtue of the Court’s Order) "motivated" to pursue Sole Legal Custody for themselves! In Pennsylvania the law, more particularly the statutes, regarding the Modification of Custody is as follows: § 5338. Modification of custody order (a) General rule.—The court may upon petition filed by either or both parties, and after notice and a hearing, modify an order for custody to serve the best interest of the child. (b) Award of Attorney Fees.—The court may award reasonable counsel fees, expert fees, mediation fees and other fees and costs to either or both parties at any time during the pendency of the matter, based on the parties’ needs and welfare of the child. (c) Legal custody.—Legal custody may be awarded to more than one person. Legal custody will not be awarded to an agency or an institution unless the court finds that neither parent nor any other person is willing and able to properly care for the child. (d) Custody proceeding.—Nothing in this chapter shall be construed as permitting the court to modify a custody award based solely upon concerns about general safety or wellbeing of the child. Any modification of custody must be based upon evidence of the child’s actual needs and development. (e) Contempt of order.—Only the court of common pleas may hold a litigant in contempt of a custody order. An order granting , denying, modifying or appealing from a request to hold a litigant in contempt of a custody order shall not be appealable as a matter of right in the absence of a court order taking the appeal. (f) Relocation.—Custody provisions for temporary or permanent relocation of the child with either parent due to a proposed relocation of the custodial parent shall be in accordance with section 5337 (relating to relocation). (g) Privilege.—Nothing in this chapter shall provide for the invasion of a privilege arising under a statute or recognized by the common law of this Commonwealth. The exception to the modification of a Custody Order would be if the parties to it have agreed to modify their legal rights amongst themselves. Putting that aside, under these statutes the Court (or the listener – you!) is left with many legal and practical questions: