What Does Joint Legal Custody Mean with Medical Decisions in Virginia?

According to VA. CODE ANN. § 20-124.1, joint legal custody is defined as a situation where “both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child's primary residence may be with only one parent.”

Eliza B. Hutchinson, writing for the William and Mary Journal of Race, Gender, and Social Justice, explains that legal custody encompasses decisions pertaining to a child’s:

  • Education
  • Upbringing
  • Religious training
  • Non-emergency medical care
  • General welfare

The parent with current physical custody is responsible for “immediate and day-to-day decisions”, including:

  • Discipline
  • Grooming & diet
  • Extracurricular activities
  • Scheduling social contacts
  • Emergency care

Thus, decisions such as whether to have a child see a therapist or receive certain vaccines are within the province of joint legal custody. But what if both parents can’t reach an agreement about decisions for their children?

What Happens When You Can’t Agree on Joint Custody Decisions?

When unresolvable disputes arise between parties with joint legal custody, the court may resolve the disputed decision itself, in addition to reviewing the entire custody arrangement. Unresolvable or continuing disputes between the parties could result in the Court awarding sole legal custody to one parent with respect to some or all the disputed decisions.

For example, if the Court finds one parent to be better informed or more involved with the children’s education or non-emergency medical care, that parent may be awarded sole custody over that matter. Third parties, such as therapists or court-appointed Guardians Ad Litem (child’s best interest attorney), can also be awarded discretion or authority over certain matters, subject to constitutional limitations (see Bonhotel, Rec. No. 0040-16-3, 2016).

Who Gets to Make Decisions About Vaccinations After Divorce?

Vaccinations tend to be regarded as preventative or non-emergency care. Thus, an unresolvable dispute over vaccination decisions between parties with joint legal custody requires judicial resolution.

A 2009 Virginia case, Gryzb v. Gryzb, addressed such a dispute. Although uncontroverted expert testimony demonstrated the medical benefit of vaccines, the Court nonetheless awarded final decision-making authority to the mother, who opposed vaccines. In reaching that conclusion, the Court reviewed the factors outlined in VA. CODE ANN. § 20-124.3, noting the mother had always been more involved in medical decisions for the minor child. The Court also questioned the sincerity of the father’s support for vaccinations, as evidence showed the father had previously also opposed vaccinations before hostility ‘suffused’ the parties’ relationship.

Who Gets to Make Decisions About Therapy?

Recent searches have not found a Virginia case that directly addressed a disagreement over therapy per se between parties with joint legal custody. However, courts have ordered the following:

  • That therapy continue during and after divorce and custody proceedings, even when the mother opposed continuing therapy (Tartaglino, 2013).
  • That therapy continue at the discretion of the therapist herself (Kelly v. Kelly, No. CL69928, 2007).
  • That therapy continue at the discretion of a court appointed Guardian Ad Litem (Lamont, 2007).

Like with vaccinations, an unresolvable disagreement over therapy decisions requires judicial inquiry into the facts analyzed within the child’s best interests’ factors set forth in VA. CODE ANN. § 20-124.3.

Consult with Our Fairfax Divorce Lawyers Today

Arguing a persuasive case to the Court for limiting or extending one parent’s decision-making authority over legal custody matters requires expertise. At Keithley Law, our team of experienced family law attorneys is committed to helping clients throughout Virginia resolve their legal disputes. If you are dealing with a custody issue, you should get in touch with our legal professionals as soon as you can to schedule an initial consultation.

Call (703) 454-5147 to schedule your consultation with a member of our law firm.

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