When Is Sole Legal Custody Appropriate?

“Shared legal custody” is defined in G. L. c. 208, § 31 as “continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.” Case law has provided guidance on when shared legal custody is generally not appropriate, that being: where the evidence demonstrates that the parties’ ability to co-parent is of such dysfunction that it is essentially nonexistent. When one parent is seeking sole legal custody (or perhaps joint legal custody with tie-breaking authority when issues of relevance remain contested), the Court will look for evidence of whether the parent opposing sole legal custody was inappropriate in many aspects of his/her parenting, including expressing anger and embroiling the child(ren) in said disputes. Additionally, whether the parent opposing a request for sole legal custody can communicate productively and appropriately (as generally high conflict is not in a child’s best interest) will also be a formative fact in support of a finding of whether or not there exists a continuous conflict that interferes with what is best for the child(ren).

Case law also indicates that when a parent reveals his/her anger toward the other parent to the child(ren) joint legal custody may be inappropriate, as it creates unnecessary strain on the child(ren) over time which would be detrimental to the child’s welfare. At bottom, whether to grant sole legal custody is an issue that is left to the Court’s discretion in making credibility determinations based on findings as to the parties’ relationship; the allegations each has made about the other (including allegations of physical aggression by one parent against the other); and evidence that reveals that one party is incapable of demonstrating the ability to communicate productively to promote the health, safety, and welfare of the minor child(ren). While a reasoned dispute as to whether a child should attend one school over another or engage in a particular religious practice may very well be a triable issue, the existence of the dispute is likely not in and of itself adequate evidentiary support to award sole legal custody.


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