What’s the Difference Between Physical and Legal Custody in Minnesota?

custody2The phrase “custody” is used to describe the obligations, and rights, of parents regarding the care of their children.

Child custody issues come about when an unmarried couple has a child together, or when married parents get a divorce.

The two types of child custody in Minnesota are physical custody and legal custody.

Legal custody involves a parent being able to make decisions regarding the child’s upbringing and well-being (religion, education and healthcare).

Physical custody is the type of custody that a parent has when the children live primarily with them. It involves the day to day care of a child.

Parents can have joint legal custody, which means both parents have a say in the upbringing of the child. If there is a dispute, the court can intervene in order to settle the conflict.

With joint physical custody, children typically (but not always) split their time with both parents.

If a parent is awarded sole physical custody, the non-custodial parent will be granted visitation (now referred to as a more politically correct “parenting time” award). A schedule will be established. For instance, a child may live with dad, but visit mom on weekends.

In some cases, sole legal custody is granted, but those awards are rare (typically reserved for situations in which there is a history of domestic abuse among the litigants). When both parents are in the picture, the court prefers that they are equally involved in making important decisions for the child.

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Sole Physical Custody & Joint Physical Custody: Is The Presumption Going To Change In Minnesota?

Depending upon your point of view, you may or may not appreciate the fact that Minnesota law contains a presumption of sole physical custody. So many potential clients ask about that. I don’t believe it is a question of whether the standard will change, but when the standard will change – based upon recent legislative activity and the progressive approaches that have been taken at the Hennepin County Family Justice Center in Minneapolis.

Fellow Minnesota divorce blogger Gerald O. Williams has published a nice article about the status of a bill in the 2008 Minnesota Legislature that relates to a modification of the sole physical custody presumption to a presumption of joint physical custody in divorce cases. The legislature has opted to refer the matter for a study.

This is certainly not the first time the legislature has looked at the issue. Part of the recent child-support reforms that were discarded was a new presumption of joint physical custody. It is evident that there are many, both in the public at large, and in the legislature, who believe it is time for a shift in thinking on this issue.

Practicing on the banks of the Mississippi River, we appear frequently in both Hennepin and Anoka County. Although the judiciary in Anoka County may claim otherwise, there is certainly a reputation that sticks for failing to award joint physical custody. One of the most frequently uttered statements in my initial consultations with individuals involves fathers telling me, “I live in Anoka County and I hear I don’t stand a chance of gaining custody.”

With much less judicial hesitation, we obtain court orders awarding parents joint physical custody in Hennepin County. Many judges in Hennepin County, rightfully, explain to the parties that custody is nothing more than a label. They begin with the fundamental question of what the parenting schedule ought to look like. Once the schedule is established, they can call it whatever they want. They let the parties call the shots without much interference.
We represent a host of individuals who come to us in an attempt to resolve their divorce in uncontested manner. Quite often, these very civil and reasonable individuals are questioned quite heavily by an Anoka County judge about whether joint custody is really appropriate. This happened to a client just last week in Anoka. Mom and dad both wanted joint physical custody and lived 1/2 a mile apart. The judge told them he “wasn’t buying it” and that joint physical custody agreements are an “easy way out.” The parties couldn’t believe it. How is it that a 30 yard swim across the Mississippi can yield such a different process when, in fact, statewide law is what dictates every divorce?

In the end, we’re not arguing for one result or another. Every case stands on its own. Rather, our position is that there ought to be consistency from county to county. But, given the legislative activity on point in recent years and given the success realized by Hennepin County on these issues, the time will come when the presumption of joint physical custody is alive and well.

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