What is Shared Decision Making or Legal Custody?

All fifty United States’ states recognize “legal” custody defined as decisions as to the educational, medical and religious upbringing of the child. Like physical custody, all fifty states apply a “ best interest of the child ” analysis to the legal custody determination. In the United States, legal custody (decision making) and physical custody (whom the child will live with) can be determined separately and thus within one family there can be shared or joint legal custody with both parents and sole or primary physical custody to one parent.

In some states, there is a legal presumption of custody including physical and legal custody, and in others, a legal presumption as to physical custody only (Missouri). Other states have a legal presumption as to legal custody (Idaho). Other states such as New York have no legal presumptions as to custody either physical or legal. In all states with a custody “presumption”, it is a rebuttable presumption, meaning that it can be overcome due to domestic violence, child abuse, or sexual abuse.

To learn the laws in your state you can use this link to see where your state falls as to legal and physical custody and what factors it considers in the “best interest” analysis of both.

Educational, Medical and Religious Decision Making

Educational decision making generally means choice of school, academic program, by example a trade school education or a college bound education. It also can include educational testing for purposes of determining if the child has special needs (such as ADHD) and requires a specialized educational program or support such as more test time, larger print, etc.

Medical decision making includes generally major non-emergency medical decisions such as psychiatric medication, or medication for such things as ADHD, or surgery vs. treatment without surgery.

Religious upbringing is generally what faith will the child be raised in, and/or how extensive can the practice of religion be? Does it include in the case of Catholicism, First Holy Communion training, Confirmatory training and attendance at both Holy Communion and Confirmation ceremonies? Does it include attending mass weekly? If it is Judaism, does it include Hebrew school or keeping Kosher in the home or elsewhere? Will the child be Bar or Bat mitzvahed? Which family members can attend these religious milestones? Who pays for the celebrations? Is a parent who is not Catholic or Jewish required to bring the child to Hebrew School or Mass during their parenting time? What if it one parent is an atheist and wants the child taught that there is no God of any faith? Should courts weigh in on religious decision making given the separation of church and state in the United States Constitution?

All of these decisions are rife with difficulty if the parents don’t agree or are of different faiths and the decisions of one parent imposes a burden on the other parent if their beliefs re education, medical decision making, and religious decision making differ from the other parent. Division on these issues are the most likely to end up in Court. The Covid pandemic of 2020- 2022 brought some of these issues to the Courts re medical decision making. Parents differed on mask wearing, vaccinating children, imposing Covid protocols re distance from others and who the child could associate with if the other adult or child was unvaccinated or unmasked.

Medical Decision Making and the Courts

In Oklahoma , a 17 year old boy diagnosed with leukemia was hospitalized against his mother’s wishes as the state accused her of medical neglect. She removed the child from the hospital with the support of local conservative politicians. The child ultimately ended up in his Father’s custody and he exercised medical decision making. Medical treatment resumed.

Educational Decision making and home schooling

The Supreme Court of the United States recognized a parent’s right to homeschool their children in 1925 in Pierce v. Society of Sisters . Each state governs home schooling and what requirements it entails. Courts over the years have most often sided with the child attending school and there have been recent examples in both California and New Jersey where homeschooling was used to cover up severe child abuse and neglect. The debate involves the intersection of parental rights and the authority of the state as to educating children. It becomes most difficult when one parent opposes homeschooling and the other insists on it. By its nature, homeschooling can leave one parent out of educational decision making for their child. Homeschooling by one parent can result in keeping the other parent uninvolved in their child’s education, uninvited to visit their classroom in the other parent’s home and without a “teacher” to discuss the child’s strengths and weaknesses. A case in Texas recently ordered the child to public school and ordered the mother to stop homeschooling. HSLDA, a homeschooling advocacy group, offers guidance as to the homeschooling laws in each state.

Religious Decision Making

The First Amendment of the United States Constitution protects the exercise of religion but when disputes as to religious practices occur as part of a custody dispute, what can courts do?

The general rule is that the court will protect the “status quo” meaning if you are raising the child in a particular practice as an intact couple, the court will continue that religious practice.

Disputes arise when the parents are of two different religions and divorce or separation results in one parent returning to their religion before marriage. Two cases of mine in New York, exemplify the difficulties and distinctions. In the first case, an orthodox Jewish father and a more secular mother agreed to raise the children in the orthodox tradition. The children attended yeshiva and the mother kept kosher in the home during the marriage. Immediately upon separation, the mother stopped keeping kosher and even went so far as bring in forbidden foods such as frozen shrimp kept in the freezer. The children revolted as they had been raised and taught the orthodox tradition and practices at home, at temple, and in yeshiva. In order to maintain her custody, the mother had to keep kosher, and in her home with the children maintain orthodox practices. In another case, the mother converted to Judaism to marry the father and agreed to raise the child in the modern orthodox tradition. Upon separation, the mother sought a return to her pre-marriage religion. The distinction in the two cases is the ages of the children. In the first case, the children were teenaged and had been well indoctrinated in their religious practices. In the second case, the child is age three. The case is still being heard by the court and no decision has been reached. The mother felt that being forced to continue the religious practice of her marriage was for the father to exert extreme control over her life, her being and right to autonomy.

In another case, one parent wants no religion, no mention of God, no prayer in the home. The other parent prays daily in the home and attends church and practices religious rituals in the home such as Friday night Shabbat. The child appears to be attuned to the idea of praying to God and attending services. She is age 4. Ultimately, the parents will either have to reach an agreement and allow the child to pray in both homes if she wishes to do so, or deny her any further exposure to a higher power or being and cease religious practices when she is in the home of the religious parent. Court decisions re religion are complex and ultimately the decision is what is in her best interest.