Top 10 Reasons to Pursue Sole Legal Custody

Definition of Sole Legal Custody

To begin with, it is important to explain that custody comes in two forms: legal custody and physical custody. In terms of physical custody, it pertains to which parent will have the child physically in their home on a particular day or days of the week. Legal custody, on the other hand, relates to which parent has the right to make decision for the child in such areas as education, medical, religious, and general welfare issues. When a court awards sole legal custody to one parent, that parent has the sole right to make decisions relating to those areas without consultation with the other parent.
In the state of New Jersey , the law provides for a presumption in favor of joint legal custody. This means that when a court makes a determination as to what the custodial arrangement will be, there is a presumption that the parents will have joint legal custody of the child. Despite the fact that the law requires joint legal custody, a court can, in its discretion, make a factual finding based on the best interest of the child that joint legal custody is not appropriate, based upon any of the seventeen (17) factors that the court must consider when making a custody determination. While the factors that the court must consider are codified in our statutes, so much of the decision-making relies upon the totality of the circumstances involving the specific case.

Child’s Best Interests

While NC general statutes really do not make much distinction between a parent with sole legal custody and a parent with primary physical custody, parents who have sole legal custody have been granted the greatest right in NC custody cases: the right to make decisions on behalf of the minor child. When parents share joint legal custody, these parents have equal decision making authority.
Studies have shown that children do not fare as well when both parents are highly conflicted, and thus, a main reason for seeking sole legal custody is that the other parent is high conflict and will not cooperate these decisions. It’s easy to see how parents who are working together well, even in the midst of their relationship ending, to have more opportunity to put their child’s needs above their own. Having parents who cannot cooperate, however, can bring so much stress and drama to a child’s life that their development can be impacted.
This leads to the next reason parents seek sole legal custody for their children: some parents are simply not capable of making joint decisions or handling the other parent. There are some parents who have, or have had, substance abuse issues, or who have exhibited a propensity to communicate with angry, controlling, or abusive tones. When parents cannot communicate. One or both parents may be resisting co-parenting or inflexible, leading to persistent conflict.
There are other reasons for seeking sole legal custody, including parental relocation, lifestyle changes for one or the other parent, passion for a hobby of interest that distracts the parent from their role in making child-related decisions or perhaps one parent seems unable to take an active role when it comes to parent-related decisions.
In a custody case, our courts look to some factors in determining what is in the child’s best interest. Your lawyer will look to and help you understand these factors. Suffice it to say that these factors look at the home environment and life stability.
While there is a lot of misinformation out there about sole legal custody and what it means, it has been my experience that parents who seek sole legal custody nearly always have a firmly-held belief that it really is in the child’s best interest.

Unfitness of the Parent

A parent who has demonstrated that his or her parenting skills are impaired and may serve as a detriment to the child is usually considered unfit by the courts. A parent abusing substances, neglecting the child or abusing the child physically may demonstrate unfitness. A 2012 case involving David Beck for example, involved a father who had been found unfit by the court to care for his children after it had been determined that he was abusing alcohol in addition to becoming physically abusive with his children. These types of findings can be crucial for any parent who is looking for sole legal custody of his or her children. Demonstrating the unfitness of a parent can allow the other parent to gain more rights and responsibilities in relation to the child.

Domestic Violence Concerns

Domestic violence is an important consideration in awarding legal custody of a child. Ties to any community domestic violence program is a tip-off to a serious parenting concern in the relationship by the parent. Does the restrained parent have a history of domestic violence? Are there restraining orders? Violence attempt allegations? Convictions? Previous state intervention? A history of abuse occurs in only in the worst situations. Abuse often occurs in "normal" households without police involvement. The family system hides domestic violence for many reasons. Parents protect each other, teachers hide the real picture from authorities, and doctors compliment "good fathers" for taking their sick children to the doctor. The reality is that the abuser is manipulating the system and the victim is terrified. The victim’s behavior defies standard parenting expectations.
Is the parent hostile to the other parent during parenting exchanges? Is the parent unfriendly, angry or antagonistic towards the other parent? Hostility is a form of domestic violence. How does this parent behave in the presence of the child when the child sees a family member or family friends? When driving, is the parent a road rage danger? Do neighbors complain that the parent is physically aggressive? Domestic violence must factor into a legal custody decision to protect the child, victims and the family.

Greater Stability for the Child

When a sole legal custodial parent is able to make unilateral decisions concerning the care of his or her child, there is a greater likelihood that that parent can provide a predictable and stable environment for the child. If the parents have joint legal custody, and the child experiences instability in the regularly scheduled parenting time with the other parent, the child may be adversely affected and suffer as a result of the instability and inconsistency. An example is a custody dispute between two parents who reside in different counties which are separated by a significant distance. If the child’s schedule of school, sports or other extracurricular activities requires frequent and significant interruptions to the parenting schedule, a good parent should seriously consider moving for sole legal custody. There are financial and scheduling burdens associated with frequent travel that may adversely affect a child. For example, if one parent promotes an unstable living environment for the child because of his or her inability to keep a job or residence, such a parent will most likely be unable to provide a consistent routine of school, sports, homework, etc.
In a truly responsible exhibiting parent exhibiting good parental judgment, a sole legal custodial arrangement will help the custodial parent to establish clear and definite boundaries to prevent the child from every having to choose between the parents.

Failure to Act as Co-Parents

An exacting standard must be observed when one is seeking sole legal custody of a child. However, there are some instances in which a parent’s reluctance to co-parent provides sufficient justification for a sole legal custodian. The most frequent reasons that justify such an order are the failure to attend conferences and the refusal to participate in extra-curricular activities.
It has long been a tenet of the court that a parent with sole legal custody need not involve the other parent in the decisions concerning the child. When it can be shown that one parent is either incapable of making decisions pertaining to the child without involvement or is not receptive to the other parent’s opinion, it would appear that the existence of sole legal custody is appropriate. The inability of a parent to attend conferences is essentially a non-issue. Rare is the case when one parent is the recipient of the conferences that do not result in the other parent being involved.
More often than not, it is the party without primary physical custody that is unable to be involved in decision making conferences. When the issue is the result of such parent’s work schedule, the court will allow periodic conferences to be conducted. However, when the attendance of both parents is essential, that parent who is unable to co-parent absent some extenuating circumstance may be awarded sole legal custody on the premise that he/she is unable to co-parent effectively. This is a vigorous type of analysis that is not readily obtainable or easily established.
Desiring to be the sole legal custodian of a child is often the least amount of relief that a parent seeks in a divorce action. Often times, one parent snatches at the other’s inability to co-parent as a means to commence the process of having the child reside with him/her. While it may be easiest to have the physical custody of a child awarded, the fact that one has the status of physical custodian does not mean that he/she will become the sole legal custodian.
There has been an increasing trend in the law that the fewest of decisions should be made by a sole legal custodian. For this reason, even though one parent may be selected as the physical custodian, the others are placed in joint legal custody status. Thus, while the parents are not married, they remain bound by the concept of joint legal custody.
Most often, the concept of sole legal custody is borne out of the desire of one parent to limit the contact that the other parent has in the decision making processes involving the child. Instances have arisen wherein a parent in a bitter and contentious relationship is attempting to deny the other parent contact with the child by indicating the other parent is unfit and unnecessary in having a part in that child’s life. Most often, the issue is borne out of an inability of the parents to communicate.
There are only a few courts that will embrace the sole legal custody approach. However, that is beginning to change. Sole legal custody may be the misnomer for those parents who have spent a lifetime fighting, arguing and degrading each other in the presence of the child. Because there are many cases where the superior parental figure has the ability to degrade the other parent, and the resultant relationship between the parties is so contentious, courts are removing the offending party from the decision making process.

High Conflict between Parents

For many couples, even after they have filed for divorce and have a signed Parenting Plan, there may be some serious conflict that continues to resurface. With an ongoing concern that a parent may be acting inappropriately (either to the child or toward the other parent) , this ongoing conflict can make joint custody utterly unworkable. In some of these extreme cases, the judge may award sole legal custody for the purposes of assigning a definitive decision-maker the authority to protect the children.

Absence of a Parent

The absence of one parent from the child’s life totally might justify legal custody to the other parent. A typical example of this might occur when a parent is incarcerated for an extended period of time, such as seven or more years. A second example might be parental abandonment of a child or parental abandonment of the military service. For example, if one parent leaves the child and subsequently has no contact with the other parent or the child for years, legal custody to the other parent may well be warranted. The classic example of parental absence due to military service would be the posted parent who is stationed in an overseas combat area and will not return home for four years. Ideally, that deployed parent is working with the other parent to remain in contact with the child through all available means.

Special Needs of the Child

In many cases, when I meet with people who have a special needs child, they, almost by default, want sole legal custody of their special needs child. Before I give you the top 10 reasons to seek sole legal custody, I want to explain how having a child with special needs that requires a primary decision-maker supports the case for sole legal custody.
Let’s say your child has special needs that require you to make decisions about schooling, medication, therapy, and other health issues. You may be the type of parent that reviews medical records, meets with teachers, and otherwise stays on top of your child’s needs. If the other parent does not have the skills to help you with decision-making in these areas, it certainly encourages the case for sole legal custody. If you can show that all the responsibilities are currently falling to you to oversee the care of your child (and the other parent is not helping with the decision-making), you should have the advantage in the sole legal custody battle.
The most important thing I want to convey is this: if your child has special needs, you have to understand what that means for custody and parenting time issues. Having a special needs child requires a greater commitment from you and the other parent to understand and oversee the needs of that child.

Consistency in Education and Medical Care

Whether it be on an IEP, 504, or other plan/program, there are specific schools of thought on how to best serve your child. From time to time there may be disagreements as to the best course of action. In greatly divergent scenarios, this could mean the difference of being in a traditional classroom setting, versus home schooling, versus private education. There may be disagreements on psychological, medical and or dental attention that may be needed. This is not to say there cannot be dialogue. But when it comes to making such decisions, it is important to have consistency in the process. Otherwise, the child may go from house to house and become more confused than anything else. Well-meaning parents may disagree. Nevertheless, it is best if sole legal custody is awarded to one parent to avoid the scenario set forth above. Similarly, if a parents’ decision-making remains together, that may not be a great idea. If parents are continually disagreeing with great frequency, and the child is in even greater frequency subjected to the conflicts, having sole legal custody granted may be the better alternative.

Preference of the Child

In certain cases, the expressed preference of a mature child is taken into account when a court decides whether or not give sole legal custody to a parent. Although a child’s expressed preference is not the deciding factor, it can be used to establish a basic compatibility when calculating the best interests of the child.
A trial judge may consider the preference of the child under the following conditions: There are also different courts that have different rules relating to mature children. Judges of the Family Division of the American Bar Association "may interview the child of sufficient age and intelligence concerning the child’s preferences as to custodial arrangements." The judge may consider the child’s preference , but is required to state the reasons why he or she did not follow the child’s preference.
The Family Division judges may have other circumstances when a mature child’s preference is taken into consideration. In addition to interviewing the child, the judge may ask to see third party witnesses who have knowledge about the child’s preference.