What if two divorced parents have joint legal custody, but one parent has physical custody of the children more than 50% of the time?

Question: What if two divorced parents have joint legal custody, but one parent has physical custody of the children more than 50% of the time? What effect can this have on medical and health care decisions?


Unless your divorce decree makes plain that neither parent has “final decision-making” or “tie-breaking” authority to resolve any joint legal custody issues between the parents nor states clearly that neither parent has more parental rights/authority than the other, then the provisions of Utah Code § 30-3-10.1 would likely apply:

30-3-10.3(4): “Any parental rights not specifically addressed by the court order may be exercised by the parent having physical custody of the child the majority of the time.”

So if your ex has custody 60% of the time and your decree of divorce doesn’t provide that you and your ex have equal parental rights as to all matters of legal custody, without either parent having more or fewer rights or powers than the other, then the award of “joint legal custody” can be somewhat misleading (and disappointing).

There are many ways to approach your situation/problem, but if it were me, I’d do something along the lines of:

1) Draft a letter/email to your ex and copy it to the physician(s)

The letter will inform your ex that you obey the court’s orders in the decree and that you expect your ex to do the same. You then go on to cite the joint legal custody provisions verbatim. They you explain (briefly and without being self-righteous about it) the concern about your ex wanting to get your son on ADHD medication and that you disagree with your ex’s desires and that you will not allow your ex to schedule unilaterally any appointments with any health care providers on the subject of ADHD or any other subject or concern without consulting with you first and reaching agreement with you as to the course of your son’s health care.

Go on to state that you understand that reasonable minds can differ, and that if your ex wants to consult a doctor or doctors about a health care concern for you son you will certainly agree to that, but that both of you need to ensure that you don’t waste money on first, second, and 8th opinions. Finish with informing your ex that you will not hesitate to move to hold your ex in contempt if your ex does not comply with the decree of divorce and respect your co-parent, joint legal custodian status and seek to be awarded your attorney’s fees incurred for your trouble, if you take the matter to court for enforcement.

MOST PEOPLE WHO AREN’T LAWYERS write terrible letters. Please don’t be penny wise and pound foolish. Take a stab at the letter yourself, THEN REVIEW IT WITH A LAWYER, a good lawyer, a smart lawyer, one who understands your needs, and let that lawyer help you edit it i) to remove the superfluous and stupid stuff you will inevitably include in your draft; ii) to remove the counterproductive stuff you will likely include in your draft; iii) to include things you forgot to include; and iv) to polish and shorten your draft to a gem that has real power.

2) Save the letter for future use

Save the letter for future use as an exhibit to your court documents, if it comes to a motion or petition to modify. If your ex responds to your e-mail, keep a copy of the entire thread of the correspondence. Without it, she’ll make claims that “it never happened” and claim “other messages” that “my ex-husband won’t cite” in an effort to cover your ex’s tracks.

3) Check with child(ren)

Check with the children as to whether your ex has been taking them to any doctors or therapists or counselors. Don’t be the least bit surprised if your child(ren) is/are sworn to secrecy by your ex so that your child(ren) lie(s) to you. Probe carefully and with sensitivity, but do probe, and consistently, if you start to get suspicious.

4) If your ex calls your bluff

(and there’s a very good chance that your ex will), have the guts to make good on what you stated you would do in your original letter. Move quickly.

Don’t wait a long time. Don’t spends weeks trying to negotiate–that’s when she’s taking the child to the doctor and building a case for the meds. As soon as you discover non-compliance with the decree, notify her (write a letter with a lawyer’s help), request mediation and offer her 3 choices of mediators and dates in your letter. If she refuses to schedule or ignores the letter, file a motion with the court, noting that she refused or ignored your request to try to resolve the dispute out of court. Then get a hearing date ASAP. If your ex has already taken the child to a doctor and gotten him started on meds, talk to an attorney about what your options may be at that point.

I hope these ideas help. Make sure you consult a good lawyer for your particular circumstances, but I think these thoughts of mine give you an idea of what I recommend when I’m involved in situations like these.

Utah Family Law, LC | | 801-466-9277

Tags: , , ,
Click to listen highlighted text!