"Custody" is an emotionally laden term. To parties in a divorce, it often takes on the unintended meanings. Many parents believe that if they are not awarded custody, that they have somehow been determined to be an inferior parent. That is not the case. Custody determinations are necessary to provide stability for children in the way they are raised. It also helps to provide a home base and security which are important considerations for children of all ages, and even more so for the very young. Custody determinations in Minnesota are based on what is in the "best interests" of the children.
There are two types of custody, "legal" and "physical" custody.
Legal custody is the decision making process regarding important life choices for minor children. Parents exercise legal custody when they decide issues such as religion, medical care and schooling.
Under Minnesota law, there is a presumption that both parents should share in this decision making process. As a result, most parents share legal custody. However, in situations, where the parents are unable to communicate (ie. where domestic abuse has occurred) or where they have a manifest difference of opinion regarding legal custody issues, it may be awarded to one parent.
It is important to remember, however, that because parents differ on one issue, does not mean they cannot share legal custody with regard to other issues. For example, if mom is Jewish and wishes to raise the children in the Jewish faith, whereas dad is Catholic and has a desire to raise the children catholic, the court may determine that mom will be able to make decisions with regard to religion but allow the parents to share responsibility for any other legal custody issues.
Physical custody refers to the primary residence of the minor children. In other words, it determines where the minor children will reside.
If parents are unable to agree on who shall have physical custody, the court is forced to make a difficult determination weighing a number of factors set out in Minnesota Statutes under Chapter 518. Generally speaking, where joint physical custody is not agreed upon by both parties, the court will award physical custody to only one parent. The other parent then shares parenting responsibilities based on a schedule which is commonly referred to as "visitation" or a parenting schedule.
Importance of Physical custody Label. The label of "sole physical custody" or "primary physical custody" or "primary physical residence" is very important under Minnesota law. If one party has sole physical custody or primary physical residence, the other parent is considered the non-custodial parent and will be required to pay full guideline child support without any offset. That is true regardless of the schedule followed by the parents.
This can lead to incongruous results. For example if one parent has the label sole physical custody but the other parent has the children 40% of the time, that non-custodial parent must still pay guideline child support which may be 25% of net income for one child, 30% for two and 35% for three.
By contrast, if the court order indicates that the parents share physical custody based on the exact same schedule, the child support is significantly reduced and, perhaps eliminated based on a child support offset.
Proposed Changes in the Law and Federal Class Action Lawsuits on Custody. Changes in the law as it relates to custody are occurring slowly. In the past few legislative sessions, in 2005, bills have been introduced which would create a presumption that the parents should share physical custody. To date, those laws have not been passed. With a presumption for shared physical custody, litigation is likely to be significantly reduced regarding that issue. Moreover, it is likely to make move-aways (one parent seeking to relocate with the children out of state) far more difficult.
A number of federal lawsuits have been filed as class actions in order to seek a change in the laws of most states to include a presumption for joint physical custody. The premise of the law suits is that parenting is a fundamental right protected by our constitution. As a result, if a state intends to infringe upon such a right, it must demonstrate that it has a compelling state interest and that the least intrusive means was used to implement address the states compelling interest.
Unfortunately, the lawsuits that have been filed were drafted by non-attorneys and are poorly crafted to accomplish their designated goal. Already, in December of 2004, a number of those lawsuits were dismissed because of deficiencies in the complaints filed.
Visitation and Parenting Schedules. Visitation and parenting schedules are also crafted by the Court taking into consideration what is in the children's best interests. Court's will most often defer to parental agreements regarding visitation. However, when parents are unable to agree, courts will provide a schedule that takes into consideration weekly arrangements during the school year, holiday visitation schedules, and extended or summer visitation. In scheduling parenting responsibilities, it is generally accepted that younger children require more frequent contact with both parents for a shorter period of time. As children mature, it is often more stable to have them living in one home throughout the school week to provide greater familiarity and comfort.
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