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Custody and Visitation
"Custody" is an emotionally laden term. To parties in a divorce, it often takes on the 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 (ie. 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, 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 joint physical custody is not agreed upon by both parties, 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.
When dividing property in a Minnesota divorce, the spouses must be prepared with information about property, including date of purchase, an estimate of value, and details such as account numbers, serial numbers and so forth.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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