Disagreements between parties on legal custody issues are not uncommon.  However, if the disagreement escalates to a level of high conflict that affects the child, one parent could lose the ability to make certain decisions in the future.

Legal custody is the right to make decisions on behalf of a child.  Shared legal custody requires both parents to communicate and agree before acting.  What happens when the parents refuse to communicate and cannot agree? The child will be in limbo wondering when and if he can play soccer; what school will she be attending; or will he have braces for school pictures while the parents litigate in court.  It is conceivable that this process may last months or even years.  A petition for modification of the current custody order needs to be filed, followed by litigation, and then a judge will ultimately make the decision for the parents following a trial unless the parents can agree to how legal custody will be handled in their parenting plan.

Sole legal custody is rarely awarded, even in the most contentious cases.  Sole legal custody assigns one parent the authority to make important decisions for the child.  To curtail future conflict judges often order shared legal custody but “in the event of a disagreement [one parent’s] preference would prevail.”  Hill v Hill, 619 A.2d 1086 (Pa. Super. 1993).  While it minimized litigation, it undermined shared legal custody.  If one parent ultimately has the final say, then that parent has sole legal custody disguised as shared legal custody.

The Pennsylvania Superior Court recently reviewed the issue of whether a trial court can award the parties shared legal custody but assign ultimate decision authority on certain aspects of the child’s life to one parent.

The trial court heard evidence showing that both parents loved their ten year old child, both were capable of taking care of her, and that neither parent had subjected the child to abuse, neglect, substance abuse, or mental illness. Neither parent had convictions for enumerated offenses pursuant to 23 Pa.C.S. § 5329. However, the case was high-conflict between two parents who rarely communicate when they are not in court and cannot agree about educational or medical decisions or a physical custody schedule. At the conclusion of trial, the court awarded shared the parents legal custody. Mother was provided with final authority to decide which school the child will attend, the child’s pediatrician, and therapist.  Father had the final authority to choose a dentist for the child.  Since the parents were unable to co-parent, the court applied this hybrid approach to the issues of legal custody.

Father filed an appeal to the Pennsylvania Superior Court and argued that a shared legal custody arrangement precludes a court from assigning one parent ultimate decision authority on certain aspects of the child’s life. The Superior Court disagreed with Father and affirmed the trial court’s decision. See B.S.G. v D.M.C. 2021 Pa. Super 110.

The lesson to be learned from this case is that if parents involve themselves in high conflict custody litigation, a court can assigned one parent ultimate decision making authority in certain aspects of the child’s life while also awarding the parties shared legal custody.

There are options to rectify the conflict before pursuing lengthy and costly litigation, such as, co-parenting counseling, mediation, or obtaining an opinion from a third neutral party. An attorney can assist you to identify what options may be right for you.