Joint Legal parental rights and responsibilities—A good Idea?

In Vermont, parental rights and responsibilities are divided into two separate categories:  physical parental rights and responsibilities, and legal parental rights and responsibilities.

15 V.S.A. Section 664 defines legal parental rights and responsibilities as follows:

” ‘Legal responsibility’ means the rights and responsibilities to determine and control various matters affecting a child’s welfare and upbringing, other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements.”

This statue went into effect in 1985.  Prior to that, one parent or the other was awarded sole “custody” with no distinction between legal and physical parental rights.   So when the provision was first put into the Vermont statutes,  parties often agreed that one parent would have sole physical parental rights and responsibilities, and the parties would enjoy joint legal parental rights and responsibilities.  It seemed like a good way for  parents to feel as if they had a say in their children’s lives, and the agreement of the  parent who had sole physical parenatal rights to share legal responsibilities often resulted in settlement of contested custody cases.

Joint legal parental rights and responsibilities has proven to be problematic, however if the parents disagree regarding any legal issues involving their children.  If a parent has sole legal rights and responsibilities, that parent can make any decision about his or her children’s school, medical care, or religion without input from the other parent.  While this can cause friction, it does not result in court intervention, because the noncustodial parent has no legal rights in this area.

On the other hand, parents who enjoy joint legal parental rights and responsibilities and who disagree about a legal issue involving their children have no recourse except to go to court.  Moreover, the rules require mediation prior to filing any motions with the court, which often delays decisions on vital legal issues.  In the most common example,  parents who disagree as to where their children should go to school often are delayed for months while they go through a mediation process, and then have to wait for a court hearing date, then a decision from the court after the hearing is concluded.  This process often results in no decision until after the school year starts, resulting in a chaotic and stressful situation for the family.

Children with special needs or talents are often the victims of this system, as parents disagree on whether and what kind of special schooling should be put in place to meet the children’s needs.  And the agreement to share legal rights and responsibilities is often made without much thought about issues like this which may arise in the future.

In my experience, some of the most contentious court hearings have been between parents who share legal parental rights and responsibilities, and are disputing how a child is educated.

Finally, disagreeing about a legal issue involving children is often not considered by the courts to meet the “ substantial unanticipated material change in circumstances”  that would allow the court to modify joint legal parental rights and order  sole legal parental rights to one parent.   The court must find that the disagreement between the parties is a “substantial unanticipated” change in the way the parents have historically interacted with each other, and if their disagreement over schooling is merely a continuation of ongoing disputes the parents have had, then the court will likely conclude that there is not a change in circumstances.  In addtion, if the parties are continuing to agree in other aspects of their children’s lives, then the court will likely conclude that there is no need for change in joint legal parental rights and responsibilities.

So, if parents agree to joint legal parental rights and responsibilities, then they will likely have to live with that decision during their children’s minority, and risk having the court making major decisions about their children’s education, medical care, and other legal issues.

There are some ways to mitigate the risks of disagreements between parents who enjoy joint legal parental rights.  First, the parties can agree that legal rights be apportioned to one parent or the other.  For example, one parent may retain sole legal rights to determine their children’s education,  but the parties may agree to joint legal rights to all other issues concerning their children.  Parties can agree to even more detailed detailed decisionmaking scenarios, such as one parent having sole decisions over certain school activities, or agreeing to certain travel restrictions. Second, parents may enjoy joint legal responsibilties, but if there is a disagreement, one parent would make the final decision–either about all legal decisions, or about one in particular, such as education.   This suggestion was made recently during mediation by mediator and  Attorney Brice Simon, of Breton & Simon  .  Hats off to Brice for the creative solution.

Mediation can also be helpful, if the parties have a skilled mediator, and both are willing to work out a solution.  Mediation should be set up as early as possible, however, since many of these decisions, such as schooling, are time sensitive, and parents should not be rushed into making a hasty decision.   In addition, the parents should be prepared to present at mediation all the facts about their proposal, including information about the proposed school, medical or mental health  treatment, or travel arrangements.  It is respectful to the other parent if you have factual information to present, and that in turn will facilitate agreement.

In conclusion, joint legal parental rights and responsibilities can work if parents can work together to resolve their differences.  However, parents should be thinking carefully about the risks of sharing legal parental rights, and carefully fashion an agreement that will reduce the risk of court involvement if the parties disagree, while retaining as much joint decisionmaking as possible.