Custody and parenting time are related and because of that, many people confuse the two. I frequently have clients tell me they want “50-50 custody” when what they really mean is they want to see their kids half the time.
There are two kinds of custody – legal and physical. Both can be either joint or sole. Legal custody concerns making the decisions about a child’s life in three main areas – education, religion and medical. If parents have joint legal custody they are supposed to make non-emergency decisions together. If they can’t agree, ultimately a court would make the decision. If one parent has sole legal custody, that parent has the final say. Depending on the other parent’s involvement, there may be an obligation to consult with the non-custodial parent, but the custodial parent ultimately gets to make the decision.
In Minnesota, there is a rebuttable presumption that joint legal custody is in the best interest of the child(ren) (which is the standard used to determine custody) (Minn. Stat. 518.17, Subd. 2). However, if there has been domestic abuse, the court shall use a rebuttable presumption that joint legal or physical custody is NOT in the best interests of the child(ren). Either of these presumptions can be overcome with sufficient evidence, but that is the default position the courts will be starting from.
Physical custody deals with the day-to-day decisions that are involved with raising a child. In Minnesota, many parents are opting for a designation to only be applied if the custody decree ever needed to be enforced outside of Minnesota and to rely on a parenting plan instead to determine how to make decisions about the child.
Although each of types of custody can be joint or sole, there are some combinations that are more common than others. It would be unheard of for one parent to have sole legal custody and the other parent to have sole physical custody. It would also be very strange for the parents to have joint physical custody and one parent to have sole legal custody. The three common arrangements are for a) both parents to have joint legal and joint physical custody; b) both parents to have joint legal custody and one parent to have sole physical custody; and c) one parent to have sole legal and sole physical custody.
Parenting time is the actual time each parent spends with the child(ren). For example, every other weekend, most of the summer or a 50/50 parenting time schedule. There is a presumption that each parent is entitled to at least 25% of the parenting time, but how that time is arranged and divvied up varies quite a bit. Ideally, parents will be able to reach an agreement about parenting time that takes into account work schedules, other family members, distances apart, school, and so on. If the parties cannot reach an agreement, the court will ultimately decide. Parenting time schedules are as varied as the parents who use them and attorneys and other professionals can help come up with creative solutions to unusual schedules/situations.
Once custody is determined, it can usually only be modified if the child is endangered by the current situation. Parenting time, however, can be modified based on the best interests of the child(ren) in recognition that children’s needs change as they get older.