Custody of Children: Traditional Terminology
When a divorce involves
minor children, many of the other issues of the divorce hinge
on a determination of how time with the children will be structured.
This time will now be divided between two homes and decisions will be
made in the best interest of the children. These decisions are normally
understood to be issues of custody.
In fact, until this year it was required that the word 'custody' had
to be used in describing these arrangements.
Parenting Plans: A New Concept
There is a new statute in Minnesota, effective January
1, 2001, which allows the parents to describe their parenting arrangement
as a parenting plan rather than using a label of custody. When the phrase
'custody' is used in Minnesota, it is used to describe either "'legal
custody" or "physical
custody".
Legal Custody
Legal custody refers to the right to make decisions affecting
the health, care, education, and religious training of the child or
children. Most couples in Minnesota choose to share joint legal custody.
In fact, under Minnesota law there is a "presumption" in favor
of joint
legal custody. This means that the Courts would prefer that
the parents make decisions together, if possible, so that they both
remain involved in the children's lives. In determining whether joint
legal custody is appropriate for parents, a Court, if it was asked to
do so, would consider the following factors:
- The ability of the parents to cooperate in rearing
the children.
- Methods available for resolving dispute regarding any
major decisions concerning the life of the child, and the parent's
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.
- Whether there has been domestic abuse between the parents.
Physical Custody
Physical custody refers to the routine daily care and
control and residence of the child. In essence, when people refer to
physical custody they are referring to where the child or children spend
most of their time. Usually if they refer to one parent as having "primary"
or "sole" physical custody it means that the children are
spending most of their time in that parent's home. When they refer to
"joint physical custody", they usually mean that the children
are spending nearly equal time in each home.
When courts are asked to determine physical custody of
minor children, they are required to look at the "best interest
of the child". This standard requires findings by the court with
respect to all relevant factors, including the following factors enumerated
by statute:
- The wishes of the child's parent or parents as to
custody.
- The reasonable preference of the child, if the court
deems the child to be of sufficient age to express preference.
- The child's primary caretaker (i.e., who provided
the day-to-day physical, emotional, and intellectual care for the
child, including such parental functions as the following: preparing
and planning of meals; bathing, grooming and dressing; purchasing,
cleaning, and care of clothes; medical care, including nursing and
trips to physicians; arranging for social interaction among peers
after school, i.e., transporting to friends' houses or, for example,
to Girl Scout or Boy Scout meetings; arranging alternative care,
i.e., baby-sitting, daycare, etc.; putting child to bed at night,
attending to child in the middle of the night, waking child in the
morning; disciplining, i.e., teaching general manners and toilet
training; educating, i.e., religious, cultural, social, etc.; and
teaching elementary skills, i.e., reading, writing, and arithmetic).
- The intimacy of the relationship between each parent
and the child.
- 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, as defined in section 363.01,
of a proposed custodian or the child shall not be determinative
of the custody of the child, unless the proposed custodial arrangement
is not in the best interest of the child;
- The capacity and disposition of the parties to give
the child love, affection, and guidance, and to continue educating
and raising the child in the child's culture and religion or creed,
if any.
- The child's cultural background.
- The effect on the child of the actions of an abuser,
if related to domestic abuse, as defined in section 518B.01, that
has occurred between the parents or between a parent and another
individual, whether or not the individual alleged to have committed
domestic abuse is or ever was a family or household member of the
parent.
- Except in cases in which a finding of domestic abuse
as defined in section 518B.01 has been made, the disposition of
each parent to encourage and permit frequent and continuing contact
by the other parent with the child.
More Information on Custody and Visitation
There is much more to the concepts of custody than the
brief outline here. Many articles and books have been written to explain
these concepts. For a more in-depth article on custody and visitation
written by DivorceChoice.com Advisory
Board member, Maury D. Beaulier click here.
For an article on the history of how societies have viewed
custody choices, written by divorceChoice.com Advisory
Board member, Nancy Berg click here.
Visitation Plans
It is imperative that couples who are divorcing remember
that they are divorcing each other. Neither parent is divorcing their
child or children. There is a great desire to protect and provide for
children by both parents. Along with this comes a sometimes conflicting
fear of fading from a child's life and worry over financial security.
When custody has been determined, a visitation schedule
must be designed. Healthy parenting arrangements allow both parents
to remain involved in their children's lives and to fairly share their
expenses. There will now be two households - each with different physical
dwelling arrangements, budgets, living styles and rules. The ideal visitation
plan is one that cooperatively provides physical, emotional, spiritual
and financial care for children.
Divorce is a catastrophe to children over which they are
powerless. When determining visitation schedules, you can alleviate
some of your children's feelings of powerlessness by asking them what
they would like in terms of visitation with the non-custodial parent.
Listen carefully and make their wishes a high priority whenever possible.
This is most often possible and effective when children are slightly
older.
Today, a divorce decree may devote many pages in the final
order to the explicit terms of visitation. This is done to keep parents
from returning to court in dispute of visitation times and various vacation
and holiday schedules. Parents can still modify their schedules of time
with their children, but the court order describes their legal rights
in the event they don't agree on a particular issue.
An alternative option for parents working cooperatively
and in their children's best interest, is to engage the services of
a Parental
Consultant or Parenting
Plan Expeditor. These are professionals who assist couples throughout
the duration of their co-parenting years in settling disputes and reaching
agreement on visitation issues. They are employed by both parents, who
pay for their services equally. When couples reach an impasse around
parenting issues, the Parental Consultant or Visitation Expeditor is
consulted. It is usually agreed, that both parties will abide by the
final decision or direction recommended by these professionals.
For more information on Parental Consultants and Visitation
Expeditors click here.
Try to stay away from schedules that are confusing or
those where the children are bouncing back and forth between two homes
- especially during the school week. Remember that the more complicated
the schedule for changing homes, the more disruptive and confusing it
may be for children.
When developing a visitation plan, keep in mind several
factors:
- The children's social life
- The children school schedule
Visitation must accommodate the schedules of both parents,
but remember the purpose of visitation is to allow the child quality
time with the non-custodial parent in a way that is least disruptive
to the child's life and well-being. This is of utmost importance to
the child and must be the primary consideration when arranging visitation.
