Joint Decision Making In Child Custody

Many couples litigate the issue of joint decision making in child custody cases.  Absent an agreement between the parents getting the evidence in support of a parents position can be difficult on many different levels.  

Sunday, April 6, 2014

I’m sitting in Blue Gorilla tattoo parlor on my daughter’s 18th birthday waiting for her to finish getting her first, and hopefully only, tattoo (the word “Ohana”, which is Hawaiian for “family”, over a feather on her shoulder). I have recently been admonished by my Webmaster and SEO consultant for not blogging enough.  As I left the house with my daughter I got one of those “what do you think your doing” looks from my Wife, so I decided blog about which parent gets to make medical decisions on behalf of the kids once they have separated! 

In my situation, the decision was neither mine nor my wife’s, as our daughter is now an adult (if only by one day!), but for minor children of separated parents, the issue is raised in a majority of our divorce and custody cases.

Decision making authority is controlled by statute.  S.C. Code Ann. § 63-15-210 states that in joint custody cases both parents have equal say in all decisions.  However, a judge may “designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions”.  In other words, a judge may state that one parent gets to make all medical and educational decisions on behalf of the kids.  The judge may or may not require that the parents consult before a decision is made.  A parent who is designated with this authority (and responsibility) is called the Primary Custodian and they have Primary Legal Custody.  The other parent is considered to have Secondary Custody.  

A parent who is awarded sole custody has the “rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training”. A parent with sole custody has no duty to communicate with the other parent prior to making decisions on behalf of the minor child.  If the other parent objects to decisions being made by the sole custodian, their only recourse is to file a new action in the family court seeking custody based upon a substantial change in circumstances effecting the children. This is a very hard standard to meet.

Many times parents will agree that one of them (usually mom) is better suited to making decisions on behalf of the kids. Sometimes parents agree, often by way of compromise, to split the decision making, with one parent making medical decisions, and the other making educational decisions. Absent an agreement, then the court must decide which parent will have sole custody, or which parent will make decisions on behalf of the kids in a joint custody situation.

But how will this decision be made?

Judges will rely on the evidence submitted by the attorney’s and the Guardian ad Litem when deciding which parent gets to make important decisions on behalf of the kids. In our firm, we will generally seek to present evidence in support of our position in one of two ways:

  1. We will present evidence that shows that our client has always made important decisions on behalf of the kids with the consent of the other parent prior to the separation (most common), or
  2. Prior to separation the decision making by the other parent was so bad that those decisions are part of our claim that the best interests of the kids can only be served by our client having sole custody or being awarded primary custody in a joint custody finding. 

This can be a tedious, indiscreet and expensive effort by both Family Law Attorney’s with the ultimate decision being left entirely to someone else (a judge). We always encourage clients, whenever possible, to use therapists to help them resolve custody issues.  Many therapists are uniquely trained in assisting separating couples with parenting issues upon separation.  If parenting issues can be resolved by agreement with the help of mental health professionals prior to the commencement of litigation, the family will almost always be better served.

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