Legal Custody vs. Physical Custody vs. Parenting Time

Legal Custody vs. Physical Custody vs. Parenting Time

• Legal custody as defined in Minn. Stat. § 518.003, subd. 3(a) (2024) means the right to determine the child’s upbringing, including education, health care, and religious training.
  • Examples of legal custody decisions include choosing doctors and therapist, approving medical/mental health treatments, selecting schools, choosing the church the child will attend and be confirmed in, and allowing the child to obtain a driver’s license.
  • Minnesota’s laws presume that joint legal custody is in the child’s best interests, and that parents with joint legal custody will collaborate in the process of decision-making. This presumption can be overcome, but there must be other significant issues in the relationship like domestic abuse or a long history of the parents not being able to work together.
    • EXCEPTION FOR DOMESTIC ABUSE: If domestic abuse, as defined in section 518B.01, has occurred between the parents, then the district court applies a rebuttable presumption that joint legal or joint physical custody is not in the best interests of the child.
      • Minnesota Statutes section 518.17, subdivision 1(b)(9), “does not assign a burden of production or persuasion to rebut the presumption to any particular party.” Thornton, 933 N.W.2d at 793.
        • This means that the Court doesn’t specifically say it’s the abusing parent’s responsibility to dispute the presumption, nor does it say it’s the responsibility of the non-abusing parenting to dispute the presumption. Therefore, regardless of what side we represent, we should be prepared to rebut this if it applies. 
      • In determining whether the presumption is rebutted, the court shall consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs. Disagreement alone over whether to grant sole or joint custody does not constitute an inability of parents to cooperate in the rearing of their children as referenced in paragraph (a), clause (12)
  • Parents with joint legal custody will have equal rights and responsibilities to make decisions for a child and must come to an agreement on all legal custody decisions.
  • A parent with sole legal custody, does not need to involve the other parent in decision-making for the child. The parent with sole legal custody  can make decisions on the child’s behalf without consulting or informing the other parent about those decisions.

Language that can be used to support request for sole legal custody when parents can’t work together:  “The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.” Id., subd. 1(b)(9) (2022). But “[j]oint legal custody should be granted only whe[n] the parents can cooperatively deal with parenting decisions.” Estby v. Estby, 371 N.W.2d 647, 649 (Minn. App. 1985). “When evidence shows that parties to a dissolution are completely unable to communicate and cooperate, joint legal custody is not appropriate.” Zander v. Zander, 720 N.W.2d 360, 368 (Minn. App. 2006), rev. denied (Minn. Nov. 14, 2006).”

• Physical custody and residence as defined in Minn. Stat. § 518.003, subd. 3(c) (2024) means the routine daily care and control and the residence of the child.
  • Physical custody does not equate to any specific amount or schedule of parenting time. Parenting time must be addressed separately in the order via a specific parenting time schedule.
  • “Joint physical custody” means that the routine daily care and control and the residence of the child is structured between the parties. Minn. Stat. § 518.003, subd. 3(d) (2024)
  • There is no presumption for or against joint physical custody. If one party is seeking joint physical custody of the minor child, they should be prepared to prove that joint physical custody is in the child’s best interest (using the best interest factors)
  • EXCEPTION FOR DOMESTIC ABUSE: If domestic abuse, as defined in section 518B.01, has occurred between the parents, then the district court applies a rebuttable presumption that joint legal or joint physical custody is not in the best interests of the child.
    • Minnesota Statutes section 518.17, subdivision 1(b)(9), “does not assign a burden of production or persuasion to rebut the presumption to any particular party.” Thornton, 933 N.W.2d at 793.
      • This means that the Court doesn’t specifically say it’s the abusing parent’s responsibility to dispute the presumption, nor does it say it’s the responsibility of the non-abusing parenting to dispute the presumption. Therefore, regardless of what side we represent, we should be prepared to rebut this if it applies. 
    • In determining whether the presumption is rebutted, the court shall consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs. Disagreement alone over whether to grant sole or joint custody does not constitute an inability of parents to cooperate in the rearing of their children as referenced in paragraph (a), clause (12)
  • Parents with joint physical custody share the day to day care for the children. The amount of time the child spends with each parent may or may not be equal.
  • A parent with sole physical custody is the one with whom the child will reside most of the time. The other parent, without sole physical custody, will often still have parenting time, including overnights, as there is no limit to how much parenting time a parent without physical custody can have.

• Parenting Time: “Parenting time” refers to “the time a parent spends with a child regardless of the custodial designation regarding the child.” Minn. Stat. § 518.003, subd. 5 (2024).