Copyright: subbotina / 123RF Stock Photo
Copyright: subbotina / 123RF Stock Photo

It was recently reported that movie star Hallie Berry has taken her daughter’s father to court over his actions of straightening and changing their daughter’s hair color, claiming that he exceeded the bounds rights as a joint legal custodian. Believe it or not, this is not an unusual issue come up when two parents of a child are not living together.

So which payment does get to decide issues like this?  Typically, the parent who is designated the “parent of primary residence”, or the “custodial parent” is the parent who is charged to make day-to-day decisions concerning a child’s well-being, which may include changing hair color or texture when there is not an agreement.

In a landmark case on joint custody, Beck v. Beck, the New Jersey Supreme Court noted that custody is typically comprised of two elements – legal custody and physical custody. Joint legal custody is the legal authority and responsibility for making “major” decisions regarding the child’s welfare, and is most often shared by both parents. On the other hand, the parent who has physical custody is the one who will make the “minor” day-to-day decisions in accordance with the needs of the child.

The type of decision that is indicated in this story is typically one which should be made by both parents.  However, in the case in which parents cannot decide together, very often the scales tip in favor of the custodial parent.

While the terminology for the custodial parent has changed over the years, and there are in fact several terms of art that is used, the idea is still the same. That parents who is designated as the primary custodial parent is the one who should be making these types of decisions in absence of an agreement, with notice to the other. Simply because the other parent will have custodial time, and may be able to make decisions about what happens when the child is with that parent, these longer-lasting decisions should never be unilaterally made by the non-custodial parent.