One of the main sources of confusion for many family law clients is the legal distinction between “sole” and “joint” custody and between “legal” and “physical” custody. For many people, “having custody” of a child simply refers to being the parent who is primarily responsible for raising the child. This conceptual notion typically involves a mixture of decision-making authority and the child’s primary residence all blended into one word: “custody.” As with many areas of the law, the common societal understanding regarding custodial designations is not necessarily the legal reality.
DEFINITIONS OF CUSTODY
The best place to start in order to get a basic understanding of the meaning behind the different custodial designations is to look at how the legislature specifically defines each term in Chapter 518.
- “Legal custody” means the right to determine the child’s upbringing, including education, health care, and religious training.
- “Physical custody and residence” means the routine daily care and control and the residence of the child.
- “Joint legal custody” 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.
- “Joint physical custody” means that the routine daily care and control and the residence of the child is structured between the parties.
- “Custodial parent” or “custodian” means the person who has physical custody of the child at any particular time.
CHILD CUSTODY: DECISION MAKING
Arguments can easily arise when the parties are not clear with respect to each other’s rights and obligations. For example, with respect to making decisions regarding the child’s welfare, the parties may have joint legal custody (shared decision-making on major medical, educational and religious matters) with one party having sole physical custody (unilateral decision-making on more routine matters). These distinctions are blurred further by the fact that in “real life” (as opposed to on paper), the party having sole physical custody often feels that he or she is in the best position to make both major decisions affecting the child and minor decisions. Indeed, in my experience, disputes arise most frequently when the party who has sole physical custody feels entitled to make both routine and major decisions without the other parent’s input solely because the child spends more time with that parent despite the fact that the parties share joint legal custody. This type of action often breeds ill will and resentment between the parties due to that fact that the parent who was not consulted feels excluded and rendered insignificant by the other parent’s actions.
To complicate matters even further, although not common, legal custody can be designated as “joint” for some issues (such as major medical and educational decisions), but “sole” for other issues (such as religious issues). Even if the parties understand the general custodial principles, disputes can still arise regarding which particular decisions are considered major decisions versus those decisions that are considered to be more routine in nature.
RIGHTS OF ALL PARENTS
It is important to note that regardless of the custodial designations, both parents have rights under Minnesota law. More specifically, each of the parents has the following rights (unless the court determines otherwise):
- Each parent has the right of access to, and to receive copies of, school, medical, dental, religious training, and other important records and information about the child. Additionally, each parent has the right of access to information regarding health or dental insurance available to the child.
- Each parent must keep the other informed as to the name and address of the school of the child, and each parent has the right to be informed by school officials about the child’s welfare, educational progress and status, and to attend school and parent teacher conferences. However, the school is not required to hold a separate conference for each parent.
- In the case of an accident or serious illness of the child, each parent must notify the other parent of the accident or illness, and the name of the health care provider and the place of treatment.
- Each parent has the right of reasonable access and telephone contact with the child.
MAKING SENSE OF IT ALL
Sorting through the legal jargon and understanding the significance of the different terms is an important step to take before agreeing to specific custody designations (or before preparing for a contested custody trial). The attorneys at JUX Law Firm can help you through this process and help you to understand what it all means in common, everyday language. Additionally, to better understand how a court makes custody determinations, take a look at Minnesota’s “best interests of the child” standard.