Joint custody and sole custody are legal decision-making concepts. Parents with joint legal custody must make child-related decisions together, or jointly. When a parent has sole custody, that parent is permitted to make the final call, or decision, on matters pertaining to the child.
Child-related matters include:
- Educational choices
- Religious practices
- Elective medical decisions
- Forms of discipline
- Selection of extracurricular activities
Judges have a great deal of discretion when assigning custody. Judges have the ability to award joint legal custody but to designate one parent as the final decision-maker for disputes over one or more child-related matters. There is presently no legal preference or presumption in favor of or against an award of joint legal custody or sole legal custody. It is improper for a judge to award a parent joint or sole custody based solely on that parent's gender.
Joint custody and sole custody have little to do with visitation, or parenting time. Parents may have equal time with their child, yet one may be designated as the "sole custodian." Or, one parent may have the child the majority of the time, yet both parents may still be expected to share joint legal custody and decision-making responsibility.
Even when one parent is awarded sole custody, the noncustodial parent has the right to access all child-related information, including medical and academic records. If one parent has sole custody and dies or becomes incapacitated, the noncustodial parent automatically has custodial rights, unless there is a question of parental fitness.
Being a noncustodial parent does not mean that there has been a loss of parental rights. Being a noncustodial parent does not mean that the noncustodial parent is "unfit." The noncustodial parent may still have liberal visitation, or parenting time, access to all information about the child's development and wellbeing, as well as the ability to attend the child's events and activities.
To share joint custody, the parents generally must demonstrate an ability to communicate and co-parent. Sometimes in divorce a parent will try to obstruct communication and co-parenting so the other parent cannot make a case for joint custody. There are cases where this strategy backfires, as judges are required to assess which parent will encourage and facilitate a relationship between the child and the other parent.