The difference between legal and physical custody is important to understand and is often confused. Minnesota Statute section 518.003 defines “legal custody” as the right to determine the child’s upbringing, including education, health care, religious training and other important, long-term decisions regarding their child or children. There is often a rebuttable presumption in favor of joint legal custody. If parties have joint legal custody and have a disagreement, the remedy is to bring a motion.
In order to obtain sole legal custody, the party has to persuade the court that the relationship between the parents is so severe that it will harm the children. In the case Sayen v. Sayen, the court awarded sole legal custody to mother, concluding that the award was in the best interests of child. 2018 WL 1569959 (Minn. Ct. App. 2018). This was after the court reviewed any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs,” and “the willingness and ability of each parent to provide ongoing care for the child.” Minn. Stat. § 518.17, subd. 1(a)(5), (7). The district court concluded that both best-interest factors favored mother due to mental issues the father had. If sole legal is obtained, the legal custodian is able to make major life decisions for the child without the input of the other parent and over the other parent’s objection. Keep in mind though, sole legal is extremely rare.
“Physical custody and residence” is the routine daily care and control and the residence of the child. Joint physical custody is often the presumption and when joint custody (as opposed to sole custody) is sought by one of the parties, four additional factors are considered by the court:
- (a) the ability of parents to cooperate in the rearing of their children;
- (b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;
- (c) whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and
- (d) whether domestic abuse has occurred between the parents.
Case Law Examples
A great example is the case, Veit v. Veit. In this case the court ruled that the trial court properly awarded husband and wife joint legal and physical custody of their minor children in divorce proceeding based on evidence that parties were able to cooperate with each other in decisions regarding children. 413 N.W.2d 601 (Minn. Ct. App. 1987). Here, the court found that the parties met the four factors and did not find any proof that the parties could not work together for the best of the children.
Joint physical custody does not require and absolutely equal division of time. The label of physical custody meant more a decade ago, than it does today. Generally what is most important in determining the amount of time spent with the child or children is the parenting time schedule. “Parenting time,” means the time a parent spends with a child regardless of the custodial designation regarding the child. The court, when issuing a parenting time order, may reserve a determination as to the future establishment or expansion of a parent’s parenting time. In a recent case, Hansen v. Todnem dealt with the court using its discretion to determine what parenting time modification is or isn’t necessary. 891 N.W.2d 51 (Minn. Ct. App. 2017). Mother and father established parenting plan for their son and shared joint physical custody. After the plan was put into place, father sought additional parenting time to provide before- and after-school childcare for son while mother was working. The Court denied the request on grounds that it was not in son’s best interests and the proposed arrangement would increase the likelihood of continued conflict between mother and father. The district court has broad discretion to grant such requests, and may do so if they are “reasonable and in the best interests of the child”.
The new best interests statute, Minnesota Statutes section 518.17 provides a 25 percent parenting time presumption, makes it clear that joint legal and joint physical will be preferred. In the case, Hagen v. Schirmers, the mother who had sole physical custody petitioned to relocate with child to California. 783 N.W.2d 212 (Minn. Ct. App. 2010). The District Court, granted mother’s petition and followed mother’s parenting-time proposal. Father appealed. The Court ultimately found that while yes, the mother could relocate, the district court failed to adequately consider the statutory presumption of 25% parenting time.
Legal custody deals with making important, long-term decisions regarding the child or children and physical custody is more the day-to-day routines. The labels of sole physical and legal ultimately don’t mean everything. The parenting time schedule is much more important in terms of getting to spend time with your child or children. The court takes the best interest of the children into consideration when determining both physical and legal custody but sole legal custody is very rare. Joint legal and joint physical will be preferred in almost every situation but not all.
At Lake Harriet Law Office, we provide strong legal representation for our clients who are going through divorce, and we use a data-focused approach to address the division of assets and debts. If you are concerned about divorce and the related financial issues, please contact us to schedule a consultation at 612-750-4843.
Randall A. Smith – Managing Attorney 612-750-4843
Jessica Dulz – Student Attorney 612-223-8925
Addy Scriver – Student Attorney 612-223-8925