Minneapolis Divorce Lawyer & Attorney

Minnesota law defines legal custody as “the right to determine the child’s upbringing, including education, health care, and religious training.” Minn. Stat. 518.003, subd. 3(a) (2008).

If no domestic abuse has occurred between the parties, the law presumes that the parties will share joint legal custody. Sharing joint legal custody means that both parents have “equal rights and responsibilities . . . to participate in major decisions” involving the child’s upbringing. Minn. Stat. 518.003, subd. 3(b) (2008).

If domestic abuse has occurred between the parties, the law uses a rebuttable presumption that joint legal custody is not in the best interests of the child. Domestic abuse includes, but is not limited to, physical harm, assault, or the infliction of fear of imminent physical harm or assault.

A court may award joint legal custody over the objection of a parent if the court makes detailed findings of fact explaining why an award of joint custody serves the best interests of the child.

by Robert W. Gadtke

Physical custody is defined by statute as “the routine daily care and control and the residence of the child.” Minn. Stat. 518.003, subd. 3(c) (2008).

It can be distinguished from legal custody in two significant ways. First, it deals with the day-to-day care of a child rather than with major life decisions. Second, unlike legal custody, there is no statutory presumption in favor of joint physical custody. In fact, it has been my experience that judges are reluctant to award joint physical custody if the parties are unwilling to agree to it. Currently, there is a Joint Physical Custody Study Group appointed by Minnesota House of Representatives considering the impact of a presumption in favor of joint physical custody. The group is required to issue its report by January 15, 2009.

In many ways, new legislation has rendered disputes over physical custody unnecessary. Now, the label rarely makes any difference. New laws have significantly altered the divorce landscape in Minnesota. While child support used to be calculated as a percentage of the noncustodial parent’s net income – the noncustodial parent was the parent without physical custody – child support is now calculated based upon the parties’ combined gross income. It doesn’t matter who has physical custody.

Don’t lose focus! Parenting time with your child is what is most important. The labels will not help you establish or continue establishing a strong parental bond with your child. Finally, all parents, regardless of their custody label, are entitled receive to the following information:

Each party has the right of access to, and to receive copies of, school, medical, dental, religious training, and other important records and information about the minor children. Each party has the right of access to information regarding health or dental insurance available to the minor children. Each party shall keep the other party informed as to the name and address of the school of attendance of the minor children. Each party has the right to be informed by school officials about the children’s welfare, educational progress and status, and to attend school and parent-teacher conferences. The school is not required to hold a separate conference for each party. In case of an accident or serious illness of a minor child, each party shall notify the other party of the accident or illness, and the name of the health care provider and the place of treatment. Each party has the right to reasonable access and telephone contact with the minor children. The court may waive any of the rights under this section if it finds it is necessary to protect the welfare of a party or child.

by Robert W. Gadtke