Any custody proceeding relating to minor children includes the decision or determination regarding a parent’s participation in the legal custody of those minor children. Legal custody, as contrasted with “physical custody,” relates not to where the children physically reside, but rather deals with which parent or parents make certain major legal decisions on behalf of a child until such time as the child reaches the age of majority.
Generally speaking, the legal decisions covered by the authority of “legal custody” consist of non-emergency medical decisions, educational decisions, and those relating to the child’s religious upbringing.
Joint legal custody, as defined by Connecticut General Statutes §46(b)-56a(a), is “an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.”
In certain circumstances, whether by agreement of the parties or by court order following a hearing or trial, joint legal custody may be awarded with a catch known as “final decision-making authority.” In some instances, perhaps where communication between the parents is strained or ineffective, a court may find it appropriate to require the parties to communicate and discuss a major decision in good faith, but may award only one party the ultimate decision-making authority if an impasse remains – essentially giving one party a tiebreaking vote.
In a decision released just this week, Connecticut’s Appellate Court stated that such an award of ultimate decision-making power remains consistent with a finding of joint legal custody, where the trial court enters orders including “any such custody arrangements as the court may determine to be in the best interests of the child” (C.G.S. § 46(b)-56(b)). Citing its own 1991 decision, the Appellate Court has noted its continued rejection of the argument that ultimate decision-making authority by one party effectively constitutes an award of sole custody.
In its ruling, the Court affirms a custodial arrangement whereby the parties were compelled to attempt to agree in good faith on any major decision relating to the child, after which they were directed to resolve the agreement through mediation. In that case, only where mediation did not produce an agreement was one party given the authority to exercise final decision-making – effectively, the tiebreak. The Court noted that the construct and process did not prevent either party from meaningfully participating in the major decisions relating to the child, but rather, merely “provided the parties with a solution for the occasion when, despite good faith and multiple attempts to reach a decision, the parties were stymied.”
Often in family law disputes, it takes creativity and a keen understanding of the parties’ interpersonal dynamics to arrive at solutions that not only benefit the minor children, but could also prevent future tension and litigation.
Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at email@example.com.
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