Legal Question in Family Law in California

My ex-wife and I have joint legal custody of our son and she is the custodial parent. I am the non-custodial parent. She has physical custody of our son 75% of the time and I have physical custody of him 25% of the time. I have heard that 51% is an important percentage.

QUESTION #1: If a parent has 51% or more physical custody, does this override the joint legal custody agreement?

My understanding of joint legal custody is that major decisions regarding the child must be discussed and agreed upon prior to making a commitment. A haircut is not a major decision. Choosing a child's first school and enrolling him in a before and after school extended care program is a major decision.

QUESTION #2: Am I correct in my understanding of joint legal custody and what is and is not important?

When I took our son to a barber for a haircut a few months ago, my ex-wife left a voice mail on my cellphone saying that I had to ask for her permission before giving him a haircut.

QUESTION #3: Is my ex-wife correct? Should I have asked her permission for the haircut?

More recently, my ex-wife enrolled our son in a kindergarten program at a public school near her house without first discussing the choice of schools with me.

QUESTION #4: Is she allowed to do this without first discussing this with me?

Last month, my ex-wife mailed me a pricing schedule for the year-long before and after school extended care services. She had already signed up our son and had already made a financial commitment without discussing this with me first. Later, when talking with her on the phone, she said that we each have to pay for half of this bill.

QUESTION #5: I would like to pay for half of this bill because I want to be supportive of my son, but legally, am I required to pay this bill? How should I agree to pay for half of this bill without implying that it is alright for my ex-wife to simply take matters regarding our son into her own hands and inform me or bill me later. This does not feel right to me.


Asked on 7/23/10, 8:41 am

1 Answer from Attorneys

#1. No, physical and legal custody are separate issues. Your description of legal custody is basically pretty good.

#2 You are basically correct.

#3 She is wrong about the haircut. Of course the more you communicate, cooperate and coordinate, the easier it will be on the child and both of you. But there was no violation of "joint legal custody" in getting a haircut.

#4 She can go ahead and do that without first discussing it with you, but it is not a binding decision. She is free to enroll him to meet enrollment deadlines, hold a place, or even just to get the ball rolling. But she does not have the right to make that a final decision over your objections. You have a right to go to court for a determination of where he goes to school if you and she cannot agree.

#5 Half of child care expenses is a standard part of every custody and support order. It may already be in yours. By doing it in violation of the joint legal custody provisions, however, if you want to fight about where he goes to school and where he gets his after school care, you can, and if you prevail and she is hit with some kind of cancellation penalty or whatever, it will be her sole responsibility.

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Answered on 7/23/10, 5:31 pm


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