Custody: You Have Options

Minnesota parents have multiple custody options, including traditional custody designations and parenting plans.

Traditional Custody Designations

Traditionally, Minnesota has had “legal custody” and “physical custody.” “Legal custody” means the right to determine the child’s upbringing, including education, health care, and religious training. Minn. Stat. sec. 518.003, subd. 3(a).

“Physical custody and residence” means the routine daily care and control and the residence of the child. Minn. Stat. sec. 518.003, subd. 3(c).

If parents have “joint legal custody,” they are to make decisions about education, health care, and religious training together. And there is a presumption that parents will have joint legal custody. Minn. Stat. sec. 518.17, subd 2.  Meaning that that is the default, unless one parent or the other makes a good case why the court should give that parent sole decision-making power.  Also, if the parents cannot “cooperate,” or if there has been domestic abuse, then the presumption disappears. Id.

“Sole physical custody” is something of a misnomer, however, since the other parent  still has as much parenting time, formerly known as “visitation,” as the court determines, up to, or even more than, 50%.  Minn. Stat. sec. 518.175.

Now, when it comes to custody, parents have more options.

Parenting Plans

In 2000, the legislature decided that ditching those terms would facilitate more amicable divorces. So they came up with an alternative: parenting plans. Minn. Stat. sec. 518.1705. According to the parenting plan regime, the parents would just divide the week (or month or whatever) up as was best for the child, without having to force their decisions into the clumsy terms (“sole” and “joint” and “legal” and “physical”).

However, Minnesota and 48 other states or territories are co-signatories to the “Uniform Child-Custody Jurisdiction and Enforcement Act,” which aims to make enforcement of divorce judgments uniform across the country. The Uniform Act uses the terms “sole” and “joint” and “legal” and “physical,” and its terms cannot be enforced if the decree uses other language.

So, for the sole purpose of that Act or any Minnesota law that referred to “sole” and “joint” and “legal” and “physical” and wasn’t changed after 2000, parenting plans have to have a statement that for those purposes (and only for those purposes) the old terms apply (and they have to be designated to the parties—i.e., joint legal and sole physical to mom).