What Does Legal Custody of a Child Mean?

One of the biggest challenges facing parents when they decide to end their marriage is what will happen to the children of the relationship. Most parents understand that they will have to decide on living arrangements and a visitation schedule for the children, by assigning a time share to each parent. Physical custody of the children can be difficult to agree on, but with the help of an experienced mediator, parents can discuss which situation is in the best interest of the children and who the primary caretaker should be. Physical custody can be sole (when children live with one of the parents all of the time), or joint when the children spend any time whatsoever with the non-custodial parent. Having said that, most parents don’t realize that besides assigning physical custody responsibilities, they must also decide and agree on how to share the legal custody of their children.

Parents who have legal custody of their children get to make many important decisions regarding their children’s lives, including choosing schools, child care providers, doctors, dentists, orthodontists, psychologists or other health care professionals, religious affiliations and activities, extracurricular activities, sports enrollment, summer camps, etc. Just like physical custody, legal custody can either be sole or joint. In many cases, California courts favor joint legal custody as they consider it to be in the best interest of the children, and they encourage parents who make these types of legal decisions together, if even parents do not share joint physical custody of their children. While joint legal custody arrangements imply that shared decisions about health, education and welfare of the children is in their best interest, they are not always easy to practice on a daily basis, since by their very nature they require a great deal of cooperation and compromise between parents. Sometimes parents will face challenges as their lives after divorce evolves. For example, if a parent decides to move to a different school district and give the children the opportunity to attend better schools, the other parent needs to agree on the new school choices before the move can occur. While parents do not have to agree about every single decision, ongoing conflict or friction may lead one of the parents to go back to court and request a family court judge to rule on specific legal matters. Sometimes, a judge may decide to assign a few legal decisions to only one parent, while giving both parents sharing equal responsibilities for other legal decisions. For example, such an individualized legal custody arrangement may work best when it comes to making health care decisions for the children if one of the parents has more time available to research and decide on the most appropriate medical or dental care providers and will be the one taking the children to these recurring appointments.

While most parents focus on how to share physical custody, they tend to neglect the implications of a child’s legal custody. During the divorce mediation process, the mediator will go over the legal repercussions of shared legal custody to make sure parents understand their responsibilities when it comes to their children’s schooling, medical care, extracurricular schedule and religious upbringing. The divorce mediator will help parents identify any area of possible conflict that may occur after the divorce so that by the time they reach an agreement, parents will be comfortable in sharing important decisions about their children’s lives.

Writing Legal Demand Letters (And Sending Them)

The legal world is a confusing realm full of dusty tomes and King James-esque pronouncements. Without legal experience it is intimidating to wade into the legal mire and write your own legal demand letter. The old adage: “A man who represents himself has a fool for a client” doesn’t have to be true, so long as you take the time to properly draft a legal demand letter. NEVER send a simple: “you owe me $XX.XX now pay up” letter. Not only do these letters rarely work, but such a letter may actually preclude you from suit later on down the road.

1) The Statement of Facts

Briefly recount what led up to the legal situation at issue. This is an objective statement that does not include your opinions or facts that are irrelevant. Never make personal attacks on the opposing party, or indicate anything that an objective observer would not be able to relate.

2) The Law

One of the trickiest sections in a good legal demand letter is a discussion of the applicable law. This is hairy for people who have little to no legal experience. As a rule of thumb, if you can’t state the law correctly you should not state it at all. An even better rule is: if you can’t state the law correctly, get an attorney. The best approach is to use a free index engine, like Google Scholar, to research legal precedent from the various courts in your state. Again, if you have no legal training this can be a huge undertaking that will only do you a disservice.

3) Damages

What did the other person’s actions cost you? What will it take to make you whole? Sometimes the remedy isn’t money at all, but rather for a person to stop doing a specific act. Maybe they play loud music while you sleep or they have used your copyrighted images without your permission.

This is where an attorney can be vital. For example you might think you are entitled to only $1000 in damages, but an attorney will know whether statutory and other damages are applicable. Sometimes there are “treble” damages by statute, which can quickly turn that $1000 recovery into $3000. Ask an attorney if this option is available.

4) Mail the Letter

Always insure that you have proof of delivery when you mail the letter. The preferred method is certified mail with return receipt requested. This requires that the opposing party signs for the letter. The opposing party knows that you have proof that he received it. Many times the statute of limitations, as well as the amount of damages, is determined by when the opposing party received the letter.

5) Consider Hiring an Attorney

A properly drafted legal demand letter can get complicated fast. Oftentimes a single transaction can implicate many laws of which you are not aware. It also shows the other party that you’re “lawyer-ing up” in your fight to retrieve damages, and forces them to take your request seriously. However, attorneys can sometimes be expensive and cost-prohibitive. Attorneys can sometimes charge as much or more than what the opposing party owes you.

More importantly, when a legal demand letter is required by statute before suit, as it is in many cases, if you improperly draft and serve a legal demand letter you may be precluded from bringing a suit for damages at all.

6) Use a Legal Demand-Letter Writing Service

If you cannot afford to see an attorney to draft your letter, you should consider a legal demand writing service. A letter from such a service can be the best of both worlds: an actual attorney researches, drafts, and sends a letter on your behalf, but often does so for a low, flat fee (between $50 and $100). Just insure that an actual attorney is drafting and sending the letter. The letter should be on legal letterhead, and be signed by an attorney with their state bar number. It will do you no good to hire a non-attorney to write you legal demand letter because they will be as lost as you when researching your legal issue. Always insure the letter is thorough and customized to your situation, and not a mere generic template letter.