Custody is perhaps the most widely misunderstood concept in family law, even among some attorneys. Often times it is mistakenly associated with one or both parents' time spent with the children. In fact, custody and parenting time, as legal terminology, are very different from one another, and have virtually nothing to do with each other. It is important to have a good understanding of the differences between custody and parenting time, so that you can focus your attention on what is important to you, and what is really in the best interests of your children.
Custody
In order to gain a better understanding of what the different custody designations will have on the parents' relationship with their children, it is necessary to first get a firm grasp on the legal definition of the custody labels, and to break free from the common misconceptions associated with those labels.
The legal definition of custody
There are two distinct custody labels, each of which must be addressed in every Minnesota case: (1) physical custody; and (2) legal custody. Physical custody is defined as, "the routine daily care and control and the residence of the child." Legal custody is defined as, "the right to determine the child's upbringing, including education, health care, and religious training." Notice that there is no reference to the amount of time a parent spends with children in the definition of either physical custody or legal custody.
Each of these custody labels must be designated as either sole to one parent, or shared jointly by both parents. Accordingly, all parents who have children together but do not reside together should be subject to one of the following combinations of custodial relationships with their children: (1) joint physical custody and joint legal custody; (2) sole physical custody and sole legal custody; (3) sole physical custody and joint legal custody; or (4) joint physical custody and sole legal custody. The law defines joint physical custody to mean that "the routine daily care and control and the residence of the child is structured between the parents" and defines joint legal custody to mean that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, including education, health care, and religious training."
Presently, the law in Minnesota provides for a presumption pertaining to legal custody, which maintains that, if domestic abuse has not occurred in the family, it is presumptively in the best interests of children for their parents to share joint legal custody. It adds that if domestic abuse has occurred, it is presumptively not in the best interests of children for their parents to share joint legal custody. There is presently no presumption pertaining to physical custody. However, in 2008, the Minnesota Legislature directed the courts to form a Study Group to consider the potential impact of enacting some kind of legal presumption related to joint physical custody. Input from lawyers, judges, psychologists, and members of the public was received by the Study Group over the course of many months, and a report was submitted to the Minnesota Legislature in January 2009. Interested in learning about what recommendations were made? Contact us, and find out!
The practical meaning of custody
So what do these custody labels really mean, and how do they affect the parents' relationships with their children? The practical meaning of custody is sometimes easier understood when considering what custody doesn't mean. To explain further, it may be helpful to give some examples of common misconceptions.
In our experience, the most widespread misconception with respect to custody is that custody is directly related to parenting time. It is not, yet many people mistakenly associate custody directly with parenting time. Consider the following statements we often hear in connection with custody cases, and see if you can determine which of them are true, and which of them are false, or not necessarily true in every case:
- "These two parents can't possibly share joint physical custody. There's no way that they can make it work with each one of them having the children 50% of the time."
- "I should have sole physical custody, because the children are with me most of the time."
- "I want joint custody. I'm just as good of a parent as he/she is."
- "He/She can't have custody right now, because he/she doesn't have a job."
- "I should have sole physical custody of the children, because I have been the primary parent to care for them over the years."
- "I don't think he/she should have joint physical custody with me, because he/she isn't involved with the children's medical appointments, school conferences, religion classes, etc."
Believe it or not, each one of those statements is not necessarily true in every case. Moreover, some of them underscore the confusion that many people have about the real meaning of custody. Want to know why? Contact us, and we'd be happy to discuss it with you!
How is Custody determined?
If custody of children cannot be determined by an agreement between the parents, it is decided by a judge, after carefully analyzing at least thirteen, and up to seventeen, independent factors to determine what is in a child's best interests. No single factor outweighs any of the other factors. Want to know what the factors are, and how they might impact your situation? Contact us, and we can discuss it with you!
Parenting Time
Parenting time with children, and each parent's access to them, are matters of great importance to most people going through family court, and rightfully so. The time you spend and enjoy with your children obviously benefits you and them alike. However, it is important to keep in mind that a parenting time schedule that serves the best interests of your children may not be the same as what the parent would like to have for a parenting time schedule. Many parents want to maximize their time with their children, and that is understandable. But parents need to remember that their family dynamic is changing, once they begin living in two different households. Many questions may need to be answered, such as: Will the parents be living quite a distance from one another? Where will the children be attending school? Will they be spending any time with a childcare provider? Are they involved with any extra-curricular activities? Do they have any special needs? Will they have difficulties adjusting to a new home, or to their parents living apart? What are the work schedules of the parents? Where are holidays to be spent? What about vacations? When all of these things are taken into consideration, sometimes it may not be practical to implement the specific parenting time schedule that a parent desires. The best interests of children are of paramount consideration.
Developing a parenting time schedule that serves the best interests of the children - not just the desires of the parents - takes substantial thought and consideration, and sometimes the advice from an advocate. This is where an experienced family law attorney can be helpful. For many families, the parents may need assistance with finding a balance between the parenting time schedule that each of them would like to have, and one that is realistic, considering all factors. We can assist you with finding that balance.
Modifications to Custody and Parenting Time
In many cases, the custody arrangement or parenting time schedule may need to change for one reason or another as the children grow older. Parents may change jobs, change residences, become remarried, or go through any number of other experiences that could have a direct impact on custody or parenting time. Hopefully, the parents will be able to discuss and agree to any necessary changes. But that is not always possible. If the parents cannot agree on changes to custody or parenting time, it may be necessary for one or both of the parents to make a formal request in court. It is important to understand that the law requires specific criteria to be met and procedures to be followed, in order to obtain a formal modification of custody or parenting time when the parents do not agree. It is also important to understand that the legal basis upon which a parent may obtain a modification of custody is very different from the legal basis for obtaining a modification of parenting time. Want to know more? Contact us, and we can explain it to you!
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