Vol. 12, No. 1, Pg. 18. Joint Legal Custody: What is it? Why have it?.

• Author: By Gregory S. Forman

South Carolina Lawyer

2000.

Vol. 12, No. 1, Pg. 18.

Joint Legal Custody: What is it? Why have it?

18Joint Legal Custody: What is it? Why have it?By Gregory S. FormanLong before South Carolina law recognized a distinction between legal custody and physical custody, family law practitioners did. Case law mentions joint legal custody but does not discuss what it means. See e.g., Pitt v. Olds, 333 S.C. 478, 511 S.E.2d 60 (1999); Dodge v. Dodge, 332 S.C. 401, 505 S.E.2d 344 (Ct. App. 1998); Schwartz v. Schwartz, 311 S.C. 303, 428 S.E.2d 748 (Ct. App. 1993), cert. dismissed, 314 S.C. 335, 444 S.E.2d 498 (1994); Wierszewski v. Tokarick, 308 S.C. 441, 418 S.E.2d 557 (Ct. App. 1992). One of the many mysteries of family law is why the first definition of legal custody was buried in a child support guidelines regulation, but there it rests in 27 S.C. Code Ann.Regs. 114-4730 (Supp. 1999): "Legal custody refers to decision-making authority with respect to the child(ren)."

Hence, joint legal custody refers to situations in which more than one person has decision-making authority for a child. Often claims to this decision-making authority can be as or more contentious than claims to physical custody.

20 Many a parent who can accept having his or her child spending less than half the nights in that parent's home cannot abide having little or no say in the child's educational or religious upbringing. In these situations joint legal custody may be an effective method of resolving such claims.

Joint legal custody has no fixed definition, and it is up to practitioners to supply the definition. Thus, a well-drafted definition of joint legal custody is vital in preventing future disputes regarding what the parties meant by joint legal custody. Two different definitions of joint legal custody for use in very distinct situations follow.

The first version of joint legal custody may be thought of as strong joint legal custody.

A. The parties must agree to any changes in schooling, extracurricular activities or religious instruction and to any non-emergency medical care;

B.The parties must keep each other informed of the identity of the child's teachers, day care providers, medical providers, psychiatrists, psychologists or mental health counselors;

3. Each parent must inform the other of any of the child's school, church or extracurricular activities to which parents are invited;

4. Each party must inform the other...