By Maury D.
Beaulier, Esq.
"Custody" is an emotionally laden term. To parties
in a divorce, it often takes on unintended meanings. Many parents believe
that if they are not awarded custody, that they have somehow been determined
to be an inferior parent. That is not the case. Custody determinations
are necessary to provide stability for children in the way they are
raised. It also helps to provide a home base and security which are
important considerations for children of all ages, and even more so
for the very young. Custody determinations in Minnesota are based on
what is in the "best interests" of the children.
There are two types of custody, "legal" and
"physical" custody.
Legal custody is the decision making process regarding
important life choices for minor children. Parents exercise legal custody
when they decide issues such as religion, medical care and schooling.
Under Minnesota law, there is a presumption that both
parents should share in this decision making process. As a result, most
parents share legal custody. However, in situations where the parents
are unable to communicate (i.e. where domestic abuse has occurred) or
where they have a manifest difference of opinion regarding legal custody
issues, it may be awarded to one parent.
It is important to remember, however, that because parents
differ on one issue, that does not mean they cannot share legal custody
with regard to other issues. For example, if mom is Jewish and wishes
to raise the children in the Jewish faith, whereas dad is Catholic and
has a desire to raise the children Catholic, the court may determine
that mom will be able to make decisions with regard to religion but
allow the parents to share responsibility for any other legal custody
issues.
Physical custody refers to the primary residence of the
minor children. In other words, it determines where the minor children
will reside.
If parents are unable to agree on who shall have physical
custody, the court is forced to make a difficult determination weighing
a number of factors set out in Minnesota Statutes under Chapter 518.
Generally speaking, where both parties do not agree upon joint physical
custody, the court will award physical custody to only one parent. The
other parent then shares parenting responsibilities based on a schedule,
which is commonly referred to as "visitation."
Visitation schedules are also crafted taking into consideration
what is in the children's best interests. Court's will most often defer
to parental agreements regarding visitation. However, when parents are
unable to agree, courts will provide a schedule that takes into consideration
weekly arrangements during the school year, holiday visitation schedules,
and extended or summer visitation. In scheduling parenting responsibilities,
it is generally accepted that younger children require more frequent
contact with both parents for a shorter period of time. As children
mature, it is often more stable to have them living in one home throughout
the school week to provide greater familiarity and comfort.
