Contributor: Andrew Younker

What’s The Difference?

The difference between legal and physical custody is simple. “Legal custody” is statutorily defined as the “right to determine the child’s upbringing, including education, health care, and religious training.” M.S.A. § 518.003, subd. 3(a). Simply put, it involves making major and minor decisions related to and for the child.

Physical custody is statutorily listed as “[p]hysical custody and residence” and is defined as “the routine daily care and control and the residence of the child.” M.S.A. § 518.003, subd. 3(a). This is easiest to conceptualize by specifying that the parent with physical custody is one that is currently in, for lack of a better phrase, physical possession of the child. It’s really that pure and simple. As a side note, there is further specification related to “residence” in case law, where the court determined that “‘primary residence’ is the principal dwelling or place where the child lives.” Suleski v. Rupe, 855 N.W.2d 330, 335 (Minn. App. 2014). Essentially, this just means that the child’s residence is the place where they spend most of their time.

The Basics Of Legal Custody

There are two flavors: “sole legal custody” and “joint legal custody.”

When sole legal custody exists it means that one parent will make all of the major and minor decisions related to the child. This sort of arrangement is appropriate when the other parent isn’t in the picture at all, or in situations where disagreements between the parents have become physical or adverse to the child’s health and/or well-being. Digatono v. Digatono, 414 N.W.2d 498, 501 (Minn. App. 1987).

If either or both parent(s) request it, then the Court will use a rebuttable presumption that joint legal custody is in the child’s best interests. M.S.A. § 518.17, subd. 1(b)(9). A “rebuttable presumption” means that this arrangement will control, unless a party shows the Court why a sole legal custody arrangement is more appropriate. Joint legal custody gives both parents an equal say in what happens with the child. This arrangement is appropriate when the parents are able to maintain a healthy co-parenting relationship and communicate with the best interests of the child in mind. It can also work with parents who disagree on issues, but are willing to discuss alternatives. This applies even if that means that those alternatives need to be discussed through a neutral third party. Zander v. Zander, 720 N.W.2d 360 (Minn. App. 2006).

The Basics Of Physical Custody

There are also two flavors here: “joint legal custody” and “sole legal custody.”

“Joint physical custody” is described as “the routine daily care and control and the residence of the child is structured between the parties.” M.S.A. § 518.003, subd. 3(d). Joint physical custody may also be requested by either or both parents, and the Court will use a rebuttable presumption that it is in the child’s best interests. M.S.A. § 518.17, subd. 1(b)(9). An important distinction to make here is that the time between parents does not need to be divided equally under this arrangement. M.S.A. § 518.17, subd. 1(b)(8). One parent could have more parenting time than the other under this arrangement, so long as the discrepancy does not exist to such a substantial degree that the disadvantaged parent is no longer responsible for the routine daily care and control of the child.

“Sole physical custody” is a term that appears in case law as an existing arrangement, but it is not specifically defined by Minnesota statutes. Probably the best existing definition is that a parent with sole physical custody retains enough parenting time to decide the child’s day-to-day routine and care. Matter of Custody of M.J.H., 913 N.W.2d 437, 442 (Minn. 2018). To simplify, the parent with a substantial amount of the parenting time has sole physical custody, while the parent with a relatively insignificant amount of time with the child does not.

Conclusion

The specifics related to custody arrangements can be considerably complicated and the terminology can be equally confusing. It is important to consult an attorney to ensure that your custody situation is properly navigated. If you need legal assistance, contact SW&L at 701-297-2890 or email us at: info@swlattorneys.com.

The information contained in this blog and on this website is for informational purposes only. Do not rely on the information on this website as legal advice.

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