A lot of times clients come in saying that they want full or sole custody of the children. This inevitably leads to a discussion regarding the distinctions between legal and residential custody.
Legal custody is essentially involves decisions regarding children's health, education, religion and general welfare. With sole legal custody, one parent can make all of the decisions regarding these matters, though they have to consult the other parent in most cases. With joint legal custody, the parents must consult and attempt to agree.
Residential custody is where the child lives. Some catch phrases often used are Parent of Primary Residence (or PPR) and Parent of Alternate Residence (or PAR). Surprisingly enough, the official definitions for these terms come from the Child Support Guidelines. Simply put, the PPR is the parent with whom the children reside more than 50% of the time.
Now, with regard to the question as to whether it is worth fighting about the issue of sole vs. joint legal custody. In practice, I have found that even in all but the worst of situations, must custody experts recommend and most judges order joint legal custody. This is even though there is case law that says that joint legal custody may not be appropriate if the parties evidence no ability to communicate. Of course, if it is the custodial parent that wont cooperate, it seems unfair to reward that parent with sole custody.
In addition, there is a presumption in the case law that the custodial parent gets the final say in the event of a deadlock between the parents, even when there is joint legal custody. This has come up time and again in reported decisions, including in cases regarding religious upbringing and of all things, a nose job.
So, if the experts and courts are usually going to recommend joint legal custody, a litigant must investigate whether it is really worth it to fight for sole custody Similarly, if the PPR has the legal presumption anyway, one must really consider whether it is worth the fight.
This is not to say that it is not worth fighting about custody. The real fight in most cases, if there is a bona fide dispute, is and should be who is the PPR and how much parenting time the other parent enjoys.