Legal Custody: What You Can and Cannot Do


By Deborah Soleymani

In cases involving child custody, parents will often share Joint legal custody of their children, which typically requires that they consult with one another concerning the health, education and welfare of their minor children. But that does not necessarily mean that either of them acting alone cannot make decisions which each of them believe are in the best interest of the children.

Unless the Legal custody orders specify the decisions that both parents must make together, either parent can act alone. Examples of joint decisions you may want to ensure your orders include are the following:

  • Enrollment or termination of attendance in any public or private school
  • Participation in regularly occurring extra-curricular activities
  • Non-emergency medical, dental and orthodontic treatment other than routine check-ups
  • Participation in mental health counseling, therapy or treatment
  • The issuance of a driver’s license
  • The issuance of a passport
  • Change in the area of a child’s residence

In a recent case, a mother wanted to take the parties’ minor child to her home country to visit with her family, but because the parties’ joint legal custody orders specified that she needed the father’s consent to obtain a passport, she needed his permission. The father objected because the mother made statements in the past about wanting to permanently move back to her home country; she also did not own a home or have a permanent job in America, so moving to another country was plausible for her.

Furthermore, considering that the foreign country was also not a signatory to the Hague Convention, father would have no recourse in getting their son back to America if mother chose to relocate. Father successfully blocked the visit to the foreign country in Court and has been able to keep their son in America. However, had the court orders not specifically identified the issuance of a passport as a decision that must be jointly made, mother could have lawfully obtained the passport on her own, and taken the child internationally.