With another new school year beginning, we frequently receive questions about how custody is determined with the ever changing schedules of school aged children. There is a difference between legal custody and physical custody and we will outline both in this blog. Minnesota Statutes section 518.003 defines “legal custody” as the right to determine a child’s upbringing, including education, health care, religious training. “Physical custody and residence” is defined as the routine daily care and control and residence of a child.
In Minnesota, there is a rebuttable presumption in favor of joint legal custody. In most cases, the parties share joint legal custody and this is in the child’s best interests. If the parties have joint legal custody and the have a disagreement, then the remedy (after mediation in most cases) would be to bring a motion to the court. A Judge will then make a decision regarding the child’s best interests. Some of the most common reasons for a motion include choice of school, educational matters and religious training. Sole legal custody is rare, and typically is only ordered when one parent can prove that the conflict between parents is so severe it would harm the child.
There is a rebuttable presumption that if domestic abuse has occurred that joint legal and/or joint physical custody may not be in the child’s best interests. Domestic abuse can be verbal and emotional abuse, as well as the fear of physical harm and bodily injury. Some Judges will make determinations regarding domestic abuse based on whether an Order for Protection is in place, although this is certainly not mandatory or determinative in many cases.
In Minnesota, joint physical custody does not require that the parties share parenting time equally (although in many cases, the parenting time is equal through a week-on-week-off, 2-2-3 or 2-5-5-2 parenting time arrangement). Many parties agree that equal parenting time is in the child’s best interest and that it promotes effective co-parenting. There is sufficient empirical evidence and data from the social science realm that suggests children thrive when parents are able to have parenting time consistent with the aforementioned schedules. In some cases, parties do share joint physical custody and parenting time is something less than “about equal.” It all depends on what is in the child’s best interests. Children require flexibility with their changing schedules from school to the summer months of vacation. Sole physical custody is typically only seen when a parent may live out of state, not within driving distance of the school district, or has a busy work schedule that cannot provide substantial parenting time during the school time schedule.
In the past, the physical custody label impacted the amount of child support received and the ability to move to another state. This has changed significantly over the past ten years. Child support received is not impacted by custody labels, and physical custody does not impact the ability to relocate. It does, however, impact school attendance in some cases.
We Practice Exclusively In Divorce and Family Law
Minneapolis Attorneys Randall A. Smith and Amber C. Bretl represent clients’ exclusively in divorce and family law cases. If you are contemplating divorce or interested in reviewing your current custody arrangement in o`rder to determine if there is a more suitable option for you, please contact the experts at Lake Harriet Law Office, LLC at 612-750-4843.