What are the reasons for sole legal custody?


You’re getting ready to separate. But you’re afraid that co-parenting is going to be a problem. You can’t see eye to eye with the other parent on anything. How are you going to be able to work together on your child’s needs?

Legal custody in MA determines which parent makes the major decisions for the child: healthcare, schooling, religion, etc. Note that this is different from physical custody, which addresses the child’s primary residence and parenting time.

Generally, parents are awarded shared legal custody. Think of it as the default legal custody arrangement. If both parents are relatively stable and can communicate to some degree, it’s in the child’s best interest to have both parents involved in decision-making about the child.

However, although it’s ideal to have both parents involved, the overall priority in any divorce or custody action is the best interest of the child. And sometimes, shared legal custody is not in the best interest of the child.

What are the issues that make the court more likely to award sole as opposed to shared legal custody? Although this list is not exhaustive, it provides some examples of reasons that the court would designate one parent the captain of the ship.

Issues that may lead to sole legal custody

-Abuse: If there’s a history of abuse, especially a recent history, the court may order sole legal custody to the non-abusive parent. It may be abuse of the child or of the other parent. This is especially common when a divorce or custody filing is paired with a restraining order. In fact, if there are credible issues of abuse, the court MUST order sole legal custody unless the judge specifies in writing why shared legal custody is appropriate.

-Parent impaired by mental illness and/or substance abuse: If a parent is mentally ill and/or abusing a substance to the point that the parent’s judgement is impaired, the court may order sole legal custody to the stable parent. Parents struggling with these issues generally have an opportunity to work through them. If the parent is demonstrating a consistent effort to address the issues, the court may give the parent the benefit of the doubt, and allow shared legal custody. However, if it appears these issues will significantly impair judgment and/or the relationship with the other parent, the court may award sole legal custody to the stable parent.

-Lack of contact with the child: If a parent hasn’t been involved with the child for a significant period of time leading up to the court proceedings, sole legal custody may be appropriate. If there’s been no contact between the parent and child, the parent is likely not in tune with the child’s needs. Therefore, it’s risky to give that parent the right to make major decisions about the child.

-Breakdown of parental communication: If the parents’ relationship is so strained that they cannot effectively communicate, the court may order sole legal custody. Although this is a potential reason for ordering sole custody, before denying shared legal custody, the court will first encourage the parties to work on their communication issues. The parents may be ordered to do counseling, or to use a parenting app to bolster communication. However, if it’s clear that communication issues will negatively impact the child, sole legal custody may be the best option.

Although this is not an exhaustive list of the reasons a court would order sole legal custody, these are the most common issues that lead to that type of ruling.

If you have any questions about sole legal custody or any family law issues in general, feel free to contact us.