What is Legal Custody?
Legal custody
involves the decision-making authority over a child. Generally, both parents
share decision-making concerning the child and this is called joint legal
custody.
Legal vs. Physical Custody
Legal custody does
not involve parenting time with the child. Instead, physical custody relates to
how parenting time with the child is allocated between the two parents.
When a child is
born to married parents, both parents automatically have joint legal custody over
the child. However, when a child is born to unmarried parents, only the mother has
legal custody. This is because the biological father has not yet established a
legal relationship with his child.
Legitimation and Paternity
In order to
establish legal custody of a biological child, the father of a child born out
of wedlock would need to petition for Legitimation. Through the Legitimation
proceeding, the father may seek decision-making abilities concerning the child,
custody or visitation, the child to take his last name, and the Court should
also establish the father's duty for support of the child.
The mother of a
child can petition the court in a Paternity action to establish child support, and
a father will often counterclaim for Legitimation.
Parenting Plan
When married
parents divorce, both parents usually retain joint legal custody of the child. Generally
divorcing parents will agree to discuss together any decisions regarding the
child(ren), and each parent will be a tie breaker on 2 of the 4 decision-making
categories: medical, education, extracurricular, and religion.
Divorcing parents
will usually agree to a Parenting Plan, which will outline the terms of legal
and physical custody. The Parenting Plan will be submitted to the judge for
approval and will be the governing document, if approved by the judge. If the parents
cannot agree, the judge will make a determination based on the best interests
of the child standard.
Written by: Rebekah
Ann James