In Indiana there are two forms of custody that courts must determine in custody matters. The two are physical custody and legal custody. As I like to explain to my clients, “physical custody is where the child lays their head down at night” and “legal custody is who makes decisions on the child’s upbringing.”
Who has physical custody (or joint physical custody) is often the cause of litigation in paternity actions and dissolution (divorce) actions in Indiana. However, most of the time, legal custody does not get litigated. Fifteen years ago legal custody was the cause of many court battles as well. However, with the adoption of the Indiana Parenting Time Guidelines, court battles over legal custody are not that common (or shouldn’t be). This is because legal custody is somewhat addressed by the Indiana Parenting Time Guidelines, which suggest both parents should have a say in the child’s upbringing.
Legal custody is who makes decisions on the children’s upbringing, such as: Where will the child go to school? What religion will the child be brought up? What doctors will the child go to? What medical treatment will the child receive? What daycare will the child attend?
If a parent has sole legal custody then that parent does not need the other parent to agree to these decisions for the child. This basically means the parent with sole legal custody has 100% control over the child’s upbringing. This is why, unless the parents have a history of not agreeing to these matters, most judges grant the parents joint legal custody. The rationale behind this is that Judges want parents to co-parent their children. What better way to encourage this than to allow both parents to participate in the decision making for their child.
Joint Legal custody means the parties have to agree on those decisions relating to the child. If the parties do not agree then it doesn’t take place. The other parent always has the right to petition the court to get involved if the parents cannot agree. For example, if a child requires surgery and the child’s doctor is recommending the surgery, if the parents do not agree, then the parent may request the court make the decision. I can tell you through experience, a judge will not be very happy if the judge has to decide this issue. Parents should make these decisions for their children not a judge. In my experience unless there is a very good reason for the surgery not to take place, the judge is going to side with the medical professional and then question the non-agreeing parent’s decision making ability and possibly modify the joint custody arrangement.