The Legal Intelligencer: Joint Legal Custody With Decision-Making Authority by One Parent For Certain Decisions Upheld
In an article published in The Legal Intelligencer on August 17, 2021, family law attorney Michael Bertin discusses the recent Pennsylvania Superior Court case of BSG v. DMC, 2021 Pa. Super. 110, ___ A.3d ___, which provides an important reminder for both the practitioner and the bench in high conflict shared legal custody cases.
In Pennsylvania, there are two forms of child custody: legal custody and physical custody. Under Pennsylvania’s Child Custody Act, “legal custody” is defined as: “the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.” Shared legal custody is where the parties must consult with each other in advance of making any joint decisions that majorly impact the child’s life. Sole legal custody is where only one parent makes the major decisions on behalf of the child’s life regarding medical, religious, and educational decisions.
In addition to trial courts being able to enter orders where a singular legal custody issue can be decided by one parent, the holding in the BSG case may spawn more agreements and resolutions between the parties and alleviate present and future litigation. In some cases, some parents are concerned with being “left out of the room” or “not having a seat at the table” when decisions are made under a sole legal custody arrangement. By preserving shared legal custody, though enabling one parent to have final decision-making authority on a specific issue, both parents may remain “at the table” and “in the room” before a decision is made, even regarding that specific issue, depending on how the order is structured. Further, such orders also alleviate the logjam historically created by the impasses reached by parents on particular legal custody issues, which ultimately were not in a child’s best interest.
Michael is a family law attorney who focuses his practice on the negotiation and litigation of domestic relations cases, divorce, child custody, support, alimony, property distribution, prenuptial agreements, and related issues. Michael was selected as the 2021 Lawyer of the Year for Family Law in the Philadelphia region by the Best Lawyers in America. He is co-author of the book Pennsylvania Child Custody Law, Practice, And Procedure. Michael is a former Chair of the Family Law Section of the Pennsylvania Bar Association and former Chair of the Family Section of the Philadelphia Bar Association. Michael holds the officer position of Secretary of the Pennsylvania Chapter of the American Academy of Matrimonial Lawyers (AAML) and is the current Co-Chair of the Custody Committee of the Family Law Section of the Philadelphia Bar Association. Michael also serves as chair of Obermayer’s Pro Bono Committee.