The Houston Family Law Blog

When Couples Divorce, Who Makes Decisions for the Child?

A 6-year-old, who attends Saint Joseph’s Grade School in Toms River, New Jersey, is in serious condition after being accidentally shot in the head by his 4-year-old neighbor. The counseling services being offered at the Catholic school to help students cope with the incident bring to mind the myriad of long-term decisions that parents must make to raise a child.

In the divorce context, it raises the question of who has a say in key aspects of the child’s welfare, including schooling and religion. In fact, it is the parent who has legal custody, not just physical custody, who makes these important decisions about the upbringing of a child.

Legal Custody

It is "legal custody," and not physical custody, that gives a parent the right to make decisions about a child's upbringing. A parent with legal custody can make decisions about key aspects of a child's life, including:

  • schooling,
  • religious instruction,
  • medical care, and
  • dental care.

Typically, courts award joint legal custody, which gives the role of decision-making to both parents. It is common for divorced couples who share physical custody to also share legal custody. The inverse is not as common. In many cases, although a couple might share joint legal custody, only one parent has physical custody. It is therefore quite common for parents who only have visitation rights to legally have a say in the child's upbringing.

However, if circumstances make joint legal custody impracticable, possibly because one parent is unfit or is incapable of making decisions about the child's upbringing for sensitive matters like religion, the court may grant one parent sole legal custody. Since many states exercise a preference for joint legal custody, a parent who seeks sole legal custody will have to demonstrate to the court why sole legal custody is in the best interests of the child.

Regardless of the court process, for important decisions like schooling and religion, it is almost always better for the parents to work together and try to resolve any issues regarding these matters outside of court.

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