Legal custody means the right of a parent or parents to make major decisions concerning the child’s upbringing, including; healthcare, education, and religious training. In Minnesota it is presumed to be in a child’s “best interests” for the parents to share joint legal custody. The court normally grants both parents the right to be equally involved in, and to jointly share in making major decisions which affect the health, welfare and safety of their minor children. Where the court has granted joint legal custody, both parents have equal rights and responsibilities, and they are legally obligated to consult with and involve the other parent before making major parenting decisions.
In certain circumstances however (for example where there has been domestic abuse or violence, or where the parents clearly lack the ability to communicate and cooperate effectively with one another in a civil manner over concerns relating to the minor children), the court may award one parent sole legal custody.
Physical custody concerns the day-to-day physical care and residence of the child or children. Under current Minnesota law there is no presumption as to what type of parenting time or parenting schedule is in the best interests of minor children. Therefor it is up to the parents themselves to come up with the day-to-day parenting schedule or parenting time arrangement which will serve the needs of their minor children.
Traditionally, where one parent has been the parent to provide for a majority of the child’s care, or where the other parent has been an un-involved parent, the involved parent would be awarded sole physical custody, subject to reasonable parental access or parenting time (formerly called “visitation”), in the other parent. Reasonable parenting time often would consist of alternating weekends (i.e. from Friday afternoon through Sunday evening or perhaps Monday morning), and one evening a week, and an alternating holiday schedule.
However, where both parents have been actively involved in the direct care of their children, it is not uncommon for parents to agree on shared or joint physical custody. Joint physical custody schedules can vary greatly depending on the child’s age and needs, and the work schedules of the parents. Some involve nearly equal parenting time, while others vary depending on the school year or other factors and considerations. A common parenting schedule is the so-called 5-2-2-5 schedule in which one parent has the children overnight on Monday and Tuesday evenings, with the other parent having Wednesday and Thursday evenings, and with the parents alternating Friday through Monday morning to school.
Additionally, changes in the way child support is determined have made the labels of “sole” or “joint” custody significantly less important. The intent of the legislature is to have custody issues resolved based upon what is truly best for the children, and to then examine child support by looking at the amount of time each parent is responsible for the care of the children.
Where parents are unable to agree on custody or on a parenting time, parents are required by Minnesota law to attend a minimum of eight hours of co-parenting education. See https://www.revisor.mn.gov/statutes/?id=518.157
When the parents are unable to agree on custody and parenting time issues, the decision will be left to the sole discretion of a complete stranger. That is, the Family Court Judge or Referee, who is required to make a decision based upon what they perceive to be in the “best interests” of the minor child or children. This can sometimes result in a custody arrangement or parenting schedule that neither parent really likes. When the decision is left to the court, both parents lose a tremendous amount of control over their minor children.
Should the decision be left to the court, the judicial officer is required to consider and make specific “findings of fact” regarding the following factors:
(1) a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
(2) any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
(3) the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
(4) whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;
(5) any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
(6) the history and nature of each parent’s participation in providing care for the child;
(7) the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
(8) the effect on the child’s well-being and development of changes to home, school, and community;
(9) the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;
(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
(11) except in cases in which domestic abuse as described in clause
(4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
(12) the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.
The above “Best Interests” factors which judges are required to consider in deciding contested custody matters, are set forth in Minn. Stat. § 518.17, Subd. 1,
Additionally, it should be noted that under Minnesota law there is no “magic” age at which a child’s preference for the custodial parent will control. It is only one of many factors that the court is required to consider. Generally however, the older the child, the more weight is given to any such preference or preferences. For very young children, the court will usually not give much, if any, weight to an expressed preference as to custody. Also, the court will look with EXTREME displeasure at parents who have tried to influence a child’s decision about which parent they want to live with.
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John P. Guzik - Divorce & Family Law Attorney