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In Minnesota, custody is defined in terms of legal custody and physical custody.

A. Legal Custody. Legal custody is defined as "the right to determine the child's upbringing, including education, health care, and religious training." Most of the time, parties to a divorce are awarded joint legal custody, which means 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." In deciding whether to award joint legal custody, the Court considers the following factors:

• The ability of the parties to cooperate in the rearing of the children.
• Methods of resolving disputes regarding any major decision concerning the life of the child, and the parents' 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.

If either party requests joint legal custody, then it is presumed that joint legal custody is appropriate, and joint legal custody will be granted unless the other party is able to prove that joint legal custody would not be in the child's best interests. (This presumption does not apply if the Court finds that domestic abuse has occurred between the parties).

In my experience, the Court will almost always award joint legal custody, unless there are strong reasons not to, such as a very serious inability to cooperate or communicate, or serious parental disfunction on the part of one parent—e.g., serious alcohol or drug addiction, physical or sexual abusiveness, or a long history of a lack of involvement in the children's parenting.

B. Physical Custody.

Physical custody is defined as "the routine daily care and control and the residence of the child." In practical terms, it generally refers to who maintains the "home base" for the children, and who has the children most of the time, particularly during school. Like legal custody, physical custody can be sole or joint. Joint physical custody means that "the routine daily care and control and the residence of the child is structured between the parties." Unlike joint legal custody, joint physical custody is uncommon, and is generally only granted if both parties agree to it.

Major consequences can result depending on whether parties to divorce share joint physical custody, or instead have sole physical custody with one parent and visitation with the other. The most important of these has to do with child support, and the standard for removal of the children from the state.

When one party has sole physical custody, he or she is entitled to child support from the non-custodial parent pursuant to the Minnesota Child Support Guidelines (see Calculating Child Support Obligation in Minnesota, by Eric C. Nelson). When the parties share joint physical custody, child support is typically calculated using a "cross-support" method. Under this method, child support is determined by first calculating what each party would owe the other if the other were sole physical custodian. Then each party's child support obligation is off-set by the percentage of time that party has the child in his or her care. The difference between these amounts is paid by the person with the greater obligation.

So for example, in a situation where the mother has net income of $5,000 per month, the father has net income of $3,000 per month, and there is only one child, who resides with the mother for 60% of the days of the year, and with the father for the other 40%, child support is calculated as follows:

If the mother has sole physical custody, and the father has visitation, then father would owe $750 per month in child support ($3,000 x 25%) (25% being the Guideline amount of child support for one child).

However, if the parties share joint physical custody, then the father would owe $450 per month in child support ($750 x 60%), and the mother would owe $500 per month [($5,000 x 25%) x 40%], resulting in a net obligation from the mother in the amount of $50 per month child support payable to the father.

The other important implication arising out of the determination of sole versus joint physical custody has to do with the standard to be applied when a parent seeks to move the residence of the child out of the state of Minnesota. Regardless of who has custody, a parent may not move the residence of the child outside the state of Minnesota without the Court's approval.

If one parent has sole physical custody, however, it is presumed that the out-of-state move is appropriate and should be granted. In order to overcome this presumption and prevent the move, the non-custodial parent bears the burden of proving by a preponderance of the evidence that the proposed move is intended to interfere with visitation, or that the proposed move is not in the best interests of the child and would endanger the child. Proving that a proposed move is intended to interfere with visitation is almost impossible to do. With respect to the endangerment standard, while it is arguable that this standard only applies in cases which would otherwise necessitate a change of custody because the custodial parent has no choice but to move, there is no clear precedent specifically so holding. In sum, when one parent has sole physical custody and seeks permission of the Court to move the children out of state, it is extremely difficult to prevent it.

In contrast, when the parties share joint physical custody, there is no presumption that the move should occur, and the Court simply applies the "best interests of the child" standard in determining whether to permit the move.

II. Standard for Determining Physical Custody.

As in many areas of family law, the standard applied by the Court in making an initial award of physical custody is the so-called "best interest of the child" standard. This standard requires findings by the Court with respect to all relevant factors, including the following factors enumerated by statute:

1. the wishes of the child's parent or parents as to custody;
2. the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
3. the child's primary caretaker (i.e., who provided the day-to-day physical, emotional, and intellectual care for the child, including such parental functions as the following: preparing and planning of meals; bathing, grooming and dressing; purchasing, cleaning, and care of clothes; medical care, including nursing and trips to physicians; arranging for social interaction among peers after school, e.e., transporting to freinds' houses or , for example to Girl Scout or Boy Scout meetings; arranging alternative care, i.e., babysitting, daycare, etc.; putting child to bed at night, attending to child in the middle of the night, waking child in the morning; disciplining, i.e., teaching general manners and toilet training; educating, i.e., religious, cultural, social, etc.; and teaching elementary skills, i.e., reading, writing, and arithmetic);
4. the intimacy of the relationship between each parent and the child;
5. the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
6. the child's adjustment to home, school, and community;
7. the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
8. the permanence, as a family unit, of the existing or proposed custodial home;
9. the mental and physical health of all individuals involved; except that a disability, as defined in section 363.01, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;
10. the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
11. the child's cultural background;
12. the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
13. except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

III. The Importance of Temporary Custody.

In cases where the issue of custody is contested, there is typically an initial hearing where the Court decides issues of custody, visitation, child support, spousal maintenance, occupancy of the homestead, etc. on a temporary basis, pending issuance of the final Judgment & Decree or Divorce--which can be several months or even a year or more in contested custody cases.

The general rule is that no testimony is taken at the temporary relief hearing. Rather, the Court decides the issues of temporary custody, etc., on the basis of parties' respective motions and affidavits, and on the arguments of counsel made at the hearing. It is extremely important to take the time at this stage to get affidavits and documentation from as many people as possible who have relevant knowledge.

Legally, the fact that one party or the other is granted temporary custody has no bearing on which party should ultimately be awarded permanent custody in the final Judgment and Decree of Divorce. However, it is important to understand that the temporary custody order represents the Court's best initial guess as to which parent is the more suitable custodian, and it sets the tone throughout the proceedings.

NOTE WELL: If you intend to seek custody, it is critically important that at the time of separation you do not leave the children in the care of the other party in the marital home. If you do so, it is very likely that the parent who is left in the marital home will be awarded temporary custody of the children simply to maintain continuity.

IV. Modification of Physical Custody.

A Court may not change physical custody from one parent to the other unless the change is in the best interests of the child.

Furthermore, even if the change of custody is in the best interests of the child, the Court cannot order a change of custody unless:

a) both parties agree to the change; OR

b) the child has been integrated into the family of the non-custodial parent with the consent of the custodial parent; OR

c) the child's present environment with the custodial parent endangers the child's physical or emotional health or impairs the child's emotional development, and the benefits of a change of custody outweigh the harm.

Where the parties do not agree to a change of custody, and the child has not been consentingly integrated into the family of the non-custodial parent, a change of custody can only be accomplished by proving that the child is "endangered" in the current custodial environment. In practice, this means that there must be strong evidence in favor of the change of custody, such as a child's strong desire to live with the non-custodial parent, physical, sexual or emotional abuse by the custodial parent, very poor discipline in the custodial home that adversely affects a child's grades or behavior, etc.

-- Eric C. Nelson, Attorney at Law