What is the difference between “joint legal custody” and “joint physical custody”?
Minneapolis, Minnesota family law attorney Marc Johannsen distinguishes between joint legal and physical custody.
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Well, in Minnesota we recognize legal custody and physical custody. Legal custody addresses issues such as the most important factors in a child’s life, education, religion, and health care. So, the legislature has said that parents are presumptively going to receive joint legal custody unless the parents have demonstrated inability to communicate and cooperate such that they are not able to make joint decisions in those important areas. Physical custody is the ability to control the day-to-day care of the child and direct his or her activities. This is together with parenting time but distinct from parenting time. The label isn’t as important as the schedule and the courts have been trying to move away from that physical custody label and getting parties to focus more on what does the schedule look like? So, for instance, you could have a joint physical custody arrangement where the schedule is not 50/50. It could be a 60/40, it could be a 55/45, it could be anything that that couple would come up with if they believe that was in the child’s best interest and the court reviewed it and felt it was appropriate, it would get approved. So, the new statute that is going in effect on October, or August 1st, makes it very clear that the schedule does not have to be 50/50 to have joint physical custody and it also makes it clear that the parties have the ability to make those decisions in a fashion that’s in the best interests of the child. So, I always counsel clients not to focus as much on the label as, what is the schedule? How does that suit your child at their developmental stage? The needs of a small child are very different than the needs of a teenager, if we even see our teenagers after a certain point because they’re busy in their own lives, right? If you see that this is a progression you can help craft a schedule that makes sense for the child at each developmental stage and then build in opportunities for revisiting it through mediation, through and evaluation process, things like this, to see how that schedule can best be improved to benefit the needs of the child.