Some Thoughts on Joint Legal Custody and School Enrollment

As the new school year starts our office is receiving many inquiries as to what does "joint legal custody" mean in California and, more specifically, which parent decides where the child goes to school?  In California there is a presumption in favor of joint custody (Fam. Code 3080-joint custody is in the best interest of a minor child...)  Fam.Code Section 3083 states that "In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent.  In all other circumstances, either parent, acting alone, may exercise legal control of  the child.  An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court."

The absence of  specificity in the Divorce Decree, Marital Settlement Agreement, or Judgment of Dissolution expressly stating which decisions: (1)  require the joint written consent of the parents, (2) which decisions either parent can make alone, and (3)  which decisions are reserved to a particular parent, often lead to the parties seeking  court intervention when one parent enrolls the child in a new school without the consent of the other parent.

More frequently the parties are  left with an Order that states that they  shall share decisions regarding the minor child's "health, education and welfare."  This is great if the parties cooperate with each other; but not so good if they can't communicate.   A non-specific order to share decision making responsibility is also not likely to be enforced by the remedy of "Contempt" since that type of order does not clearly set forth what the parent is to do or not do.  The uncertainty created by a non-specific order often results in the parent with primary physical custody making the decision about school placement.