Legal Custody vs. Physical Custody in Minnesota

Legal Custody

In Minnesota when a dissolution proceeding involves minor children, the parties or the court must decide issues such as custody, parenting time, and child support.  There are two types of custody “labels” in Minnesota: legal custody and physical custody.  When determining custody in Minnesota, the courts will apply the “best interest factors” as defined under Minnesota Statutes, section 518.17.  Each state has their own definitions for custody and custody labels, and it is important to understand what these labels mean before agreeing to custody labels or proceeding through the court process.

Legal Custody

Legal custody means the right to make major life decisions regarding the upbringing of your minor child(ren).  These major life decisions include education, medical treatment (generally non-emergency health care), and the religious upbringing of the child(ren).

For example, legal custody decisions may include some of the following:

  • Authorizing medical treatment, care, and surgery
  • Deciding on medical providers, doctors, and clinics
  • Deciding on school registration or enrollment in a particular school district
  • Enrolling the child in private school vs. public school
  • Parental consent to extra-curricular activities
  • Authorizing a child to obtain a driver’s license
  • Raising the child in a particular religion
  • Enrolling the child in a religious education classes

Sole Legal Custody vs. Joint Legal Custody

Legal custody in Minnesota can be either “sole” or “joint” (also referred to as “shared”).

  • “Sole legal custody” means that one parent has the right to make these decisions for the minor child(ren) without the other parent’s involvement.  The parent awarded sole legal custody does not need to ask permission from the other parent or place the other party on notice of such decisions.
  • “Joint legal custody” means that both parties should make these major life decisions together, and that each party has an equal right and responsibility to be involved in the decision-making process for the child(ren).  There is a rebuttable presumption in Minnesota that joint legal custody is in the best interests of the minor child(ren), and that both parties will make these decisions together.  However if there has been domestic abuse between the parents, the court will generally not order joint legal custody.

Physical Custody

Physical custody refers to the residence, daily care, and control of the minor child(ren).  Generally, physical custody means which parent the child(ren) will reside with the majority of the time and on a day-to-day basis. Physical custody is different from “parenting time,” which usually refers to a specific schedule for the minor child.  Parenting time can address the children’s schedules, the parties’ schedules, transportation, and where the children will lay their heads at night.

Sole Physical Custody vs. Joint Physical Custody

Physical custody in Minnesota can also be either “sole” or “joint.”

  • “Sole physical custody” typically means that the child(ren) will reside with one parent the majority of the time on a day-to-day basis.  The parent not awarded sole physical custody can still be granted parenting time with the minor child(ren), which may include overnight parenting time.
  • Joint physical custody” means that both parents will care for the children on a day to day basis.  Sometimes joint physical custody means an “equal” parenting time schedule, but not always.

A joint physical custody can resemble some of the following:

  • An equal 50-50% parenting time schedule
  • Summers with one parent and the school year with the other parent
  • Four days per week with one parent and the other three days with the other parent
  • A 5-2-2-5 schedule, where the children rotate five days per week with Parent 1 and two days per week with Parent 2, and then two days the next week with Parent 1 and five days with Parent 2
  • A week-on-week-off parenting time schedule
  • A 60-40% parenting time schedule, 70-30% parenting time schedule, etc.

When joint physical custody is sought, the court will assess the following factors:

  • The ability of the parents to cooperate in rearing their children
  • The parent’s methods for resolving disputes regard major decisions about the child(ren)’s lives, and the other parent’s willingness to use those methods
  • Whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing
  • Whether domestic abuse has occurred between the parties.

Currently, there is not a presumption in Minnesota that parties should share joint physical custody of their minor children.  If one party is seeking joint physical custody of the minor child(ren), that party will need to prove that the parties have the ability to co-parent and cooperate in raising the children and resolving disputes as they relate to the children.

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