What’s the difference between "physical custody" and "legal custody" in Minnesota?
Physical custody is the routine daily care and control of a child. Examples of care and control include bathing, disciplining, or preparing meals for a child.
Legal custody, on the other hand, is the ability to make major decisions for a child. For example, parents with legal custody can help decide where a child should go to school, whether they should get a flu shot, or what church they should attend.
What is "joint physical custody”?
"Joint" means "shared" in the law. It does not necessarily mean equal. In Minnesota, two parents can share joint physical custody of their children and it does not mean that the children have to spend an equal amount of time in each home. The only requirement is that the children live in each home for a scheduled period of time. That could mean spending every other weekend with one parent, or it could mean living 50% of the time with each parent, or anything in between.
I want physical custody of my child and I live in Minnesota. Where do I begin?
The first thing to do is explore your options. Parents are often able to work through their differences informally, without resorting to the courts. In Minnesota, there are many good family law mediators and collaborative law specialists who can help you resolve disputes about physical custody.
However, if you can't resolve your differences informally, you'll need to go to court. There are two ways to seek custody of your child in Minnesota's courts.
- if you're married, you can file a summons and petition (which will initiate divorce proceedings) for a divorce or legal separation, and ask for physical custody in the petition, or
- if you're already divorced or legally separated, or if you were never married but you established paternity of your child, you can file a petition or motion for custody in the county where your child is a permanent resident or in the county where a court has entered an earlier custody order.
In either case, you will have to give written notice of your petition or motion to the other parent, so that both parents have an equal opportunity to explain their respective positions and talk to the judge if there's a hearing.
How do Minnesota courts decide who should have physical custody of a child?
Minnesota courts are required to look at the evidence and apply 13 separate factors to determine what custodial arrangement is in the child's best interests. Judges must always focus primarily on what is in a child's overall best interests. A judge cannot look at one or two factors and ignore the rest; judges must apply all 13 factors. The factors are:
- the parents’ wishes
- the child’s reasonable preference, if the court deems the child to be of sufficient age to express preference (sometimes judges will meet privately with older children about where they want to live)
- the child's primary caretaker (this factor doesn't create a presumption, or legal assumption, that the primary caretaker parent should automatically get sole physical custody, but courts do consider it)
- the attachment and closeness of each child-parent relationship
- 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
- the child's adjustment to home, school, and community
- the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
- the permanence, as a family unit, of the existing or proposed custodial home
- the mental and physical health of all individuals involved, except that a disability can't determine the outcome unless the arrangement isn't in the child's best interests
- the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child and teaching the child about his or her culture and religion or creed, if any
- the child's cultural background
- the effect on the child of domestic abuse that has occurred between the parents or between a parent and another individual, regardless of whether the alleged abuser is or ever was a family or household member of the parent, and
- each parent’s ability and willingness to encourage and permit frequent and continuing contact by the other parent with the child (except in cases in which another court has separately decided there was domestic abuse).
If either parent is seeking joint physical custody, the court has to consider four more factors:
- the ability of parents to cooperate in child-rearing
- methods for 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, and
- whether domestic abuse has occurred between the parents.
When the court has reached a decision, it must issue a written order with "findings" (an explanation about how the judge applied the facts to each of the factors and how that application supports the new custody arrangement).
The court order will state whether physical custody is sole or joint. If one parent receives sole physical custody, the court order will provide a detailed “parenting time” (visitation) schedule for the other parent. If both parents receive joint physical custody, the order will clearly state where the child will live, how long the child will stay in each place, and how transportation responsibilities will be handled.
For useful resources and more information on this topic, see Child Custody and Parenting Time in Minnesota(presented by the Minnesota Judicial Branch Self Help Center).
For information about modification of physical custody, see Nolo's Essential Guide to Child Custody & Support