During divorce, paternity, or subsequent custody proceedings, the issues of physical and legal custody are often the singular legal objective. Previous blogs have discussed the general distinction between physical and legal custody. Namely, that physical custody involves where the child sleeps the majority of the time, and legal custody refers to decision-making for the child.
Legal custody is generally defined as decision-making regarding the main issues of education, medical issues, and religion of the Child1. However, legal custody can also include decisions about extracurricular activities and other more ordinary decisions to the extent they fall under these categories.
Because the legal custody decisions are such important topics, often, Courts prefer both parents to have joint legal custody of the Child. This allows the parties to work together to make crucial decisions regarding the upbringing of the Child.
However, communication is a key aspect of joint legal custody. Without the ability to communicate efficiently and effectively, at least as it relates to legal custody decisions, it is quite difficult to reach joint custody decisions. The wishes of both parties and the best interests of the Child are (or should be) all taken into account to arrive at a joint custody decision.
If communication between the parties is so lacking or has proven (almost) impossible in the past, or one parent has endangered the Child or is engaged in risky behavior, Courts may award sole legal custody to one parent.
A recent opinion of the Court of Appeals analyzed the topic of legal custody and the communication problem between parents. In Gordon v. Gordon, the trial court found that the parents had a history of not being able to communicate effectively. However, the Court also noted that they had agreed to several provisions out of Court, by communicating together and granted them joint legal custody.
The Court of Appeals ultimately held that the trial court had not abused its discretion by granting the parties joint legal custody. The past communication issues were taken into account, but instances of the parties working together were also factored in the Court’s decision. Trial courts are best suited to weigh this evidence.
So, while communication between parents during a custody or divorce matter may be strained and even ineffective or non-existent at times, it is still possible for parents to share joint legal custody, encouraged by the Courts. Only in the more extreme cases of inability to communicate or other issues of a parent being a danger or engaging in risky behavior may Courts award sole legal custody to one parent as somewhat of a default provision.
Being aware of the potential issues you face as parents during divorce and custody matters can help avoid the pitfalls of the same. Or it may help you help someone else better understand their situation. Understand the communication strain of litigation, but work to communicate with the co-parent about the Child, which is in the Child’s best interests.
Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
- See generally, Ind. Code §31-17-2-13, §31-9-2-67, and §31-17-2-15
