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Legal and Physical Custody
(provided by Eric C. Nelson, Esq.)

In Minnesota, custody is defined in terms of legal custody and physical custody.

A. Legal Custody. Legal custody is defined as "the right to determine the child's upbringing, including education, health care, and religious training." Most of the time, parties to a divorce are awarded joint legal custody, which means that "both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, including education, health care, and religious training." In deciding whether to award joint legal custody, the Court considers the following factors:
If either party requests joint legal custody, then it is presumed that joint legal custody is appropriate, and joint legal custody will be granted unless the other party is able to prove that joint legal custody would not be in the child's best interests. (This presumption does not apply if the Court finds that domestic abuse has occurred between the parties).

In my experience, the Court will almost always award joint legal custody, unless there are strong reasons not to, such as a very serious inability to cooperate or communicate, or serious parental disfunction on the part of one parent e.g., serious alcohol or drug addiction, physical or sexual abusiveness, or a long history of a lack of involvement in the children's parenting.

B. Physical Custody.

Physical custody is defined as "the routine daily care and control and the residence of the child." In practical terms, it generally refers to who maintains the "home base" for the children, and who has the children most of the time, particularly during school. Like legal custody, physical custody can be sole or joint. Joint physical custody means that "the routine daily care and control and the residence of the child is structured between the parties." Unlike joint legal custody, joint physical custody is uncommon, and is generally only granted if both parties agree to it.

Major consequences can result depending on whether parties to divorce share joint physical custody, or instead have sole physical custody with one parent and visitation with the other. The most important of these has to do with child support, and the standard for removal of the children from the state.

When one party has sole physical custody, he or she is entitled to child support from the non-custodial parent pursuant to the Minnesota Child Support Guidelines (see Calculating Child Support Obligation in Minnesota, by Eric C. Nelson). When the parties share joint physical custody, child support is typically calculated using a cross-support method. Under this method, child support is determined by first calculating what each party would owe the other if the other were sole physical custodian. Then each party's child support obligation is off-set by the percentage of time that party has the child in his or her care. The difference between these amounts is paid by the person with the greater obligation.

So for example, in a situation where the mother has net income of $5,000 per month, the father has net income of $3,000 per month, and there is only one child, who resides with the mother for 60% of the days of the year, and with the father for the other 40%, child support is calculated as follows:

If the mother has sole physical custody, and the father has visitation, then father would owe $750 per month in child support ($3,000 x 25%) (25% being the Guideline amount of child support for one child).

However, if the parties share joint physical custody, then the father would owe $450 per month in child support ($750 x 60%), and the mother would owe $500 per month [($5,000 x 25%) x 40%], resulting in a net obligation from the mother in the amount of $50 per month child support payable to the father.

The other important implication arising out of the determination of sole versus joint physical custody has to do with the standard to be applied when a parent seeks to move the residence of the child out of the state of Minnesota. Regardless of who has custody, a parent may not move the residence of the child outside the state of Minnesota without the Court's approval.

If one parent has sole physical custody, however, it is presumed that the out-of-state move is appropriate and should be granted. In order to overcome this presumption and prevent the move, the non-custodial parent bears the burden of proving by a preponderance of the evidence that the proposed move is intended to interfere with visitation, or that the proposed move is not in the best interests of the child and would endanger the child. Proving that a proposed move is intended to interfere with visitation is almost impossible to do. With respect to the endangerment standard, while it is arguable that this standard only applies in cases which would otherwise necessitate a change of custody because the custodial parent has no choice but to move, there is no clear precedent specifically so holding. In sum, when one parent has sole physical custody and seeks permission of the Court to move the children out of state, it is extremely difficult to prevent it.

In contrast, when the parties share joint physical custody, there is no presumption that the move should occur, and the Court simply applies the best interests of the child standard in determining whether to permit the move.

Information provided by:
Eric C. Nelson, Esq. located at

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