Who gets custody of the children in a divorce?

This is the first question I hear when I first meet with a client.  No other issue for parents going through a divorce is more painful, heart wrenching and just plain awful to think about.

When a person mentions “custody” there are actually two type of custody that are at issue – legal custody and physical custody.  A court has to determine who has what type of legal custody and then physical custody.

  1. Legal custody

Legal custody involves the big decisions made for their children which include:

Medical treatment – where does a child go for medical treatment, who should be the child’s primary doctor;

Educational decision – where should a child go to school, what should happen   if a child is doing poorly in school; and

Religious upbringing – in what faith should a child be raised.

Minnesota law presumes the parents are going to get joint legal custody meaning they must work together to discuss the decisions that need to be made and to make these decisions together.  This assumption disappears if the parents show they cannot work together to make these decisions under any circumstances or if there was domestic abuse by one parent against the other and/or the children.  One parent having sole legal custody is fairly rare.

  1. Physical custody

Physical custody involves where a child is going to live on a daily basis.  As of August 1, 2015, when it comes to joint physical custody, there is no presumption for or against joint physical custody, except when there is domestic abuse between the parties, as defined by Minnesota Statute Section 518B.01.  Domestic abuse is defined as (1) physical harm, bodily injury, or assault or (2) the infliction of fear of imminent physical harm, bodily injury, or assault.

There are twelve factors a court must consider when determining who should have what sort of physical custody.

The parents also have to consider when they will have the kids with them.  Parents need to consider creating a parenting time schedule for the school year, summer break, holidays and other special events.

It is very important to talk with a skilled family law attorney to not only discuss in detail legal custody, physical custody and parenting time at the time of the divorce but what could happen in the future should a parent want to change, or modify the schedule, if a parent wants to move out of state, if a parent is not caring for the children properly or as the children get older.

Jessica Sterle