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| The Importance of the Physical Custody Label in Minnesota |
By Eric C. Nelson, Esq.
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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"
or "primary residence" of 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."1 Unlike joint legal custody, joint physical custody is
uncommon, and is generally only granted if both parties agree to it. However, in the past few
years, it has become more common - though still not the norm - and is sometimes ordered even over
both parties' objections.
Judges often tell litigants not to argue over the physical custody "label." They often
say that it is not important. That, however, depends on your priorities and not the Court's. 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 (a/k/a "parenting time")
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, child support is typically awarded pursuant to the
Minnesota Child Support Guidelines, without consideration of what percentage of time the
non-custodial parent. When the parties share joint physical custody, a Child Support Guidelines are
applied using a "cross-support" method, commonly referred to as the Hortis/Valento formula,2
pursuant to which each party pays the other Guideline child support for the percentage of time the
other party has the children in his or her care.
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 or the other parent's consent.
If one parent has sole physical custody, however, it is presumed that the out-of-state move is
appropriate and should be granted.3 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.4 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, and the out of state move would be
tantamount to a modification to sole physical custody, then the party seeking to move the children
out of state has as difficult a time obtaining permission to do so, as the non-custodial parent
would have preventing it sole physical custody scenario.
Footnotes:
1 Minnesota Statute section 518.003, Subdivision 3(d).
2 See Broas v. Broas, 472 N.W.2d 671 (Minn.Ct.App. 1991) [citing Valento v. Valento, 385 N.W.2d 860 (Minn. Ct. App. 1986) and Hortis v. Hortis, 367 N.W.2d 633 (Minn. Ct. App. 1985).
3 Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) [citing Auge v. Auge, 334 N.W.2d 393, 397 (Minn.1983) and Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn.1983)].
4 Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) [citing Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn.1988); Minn. Stat. § 518.18(d)(iii) (1994); and Minn.Stat. § 518.175, subd. 3 (1994)].
ABOUT THE AUTHOR
Eric C. Nelson has devoted his practice exclusively to family law, with particular focus on divorce
and child custody matters, including, but not limited to post-decree modification of custody.
Eric has successfully handled hundreds of cases of divorces (both contested and uncontested),
child custody, child support, spousal maintenance, parenting time, out-of-state moves, domestic abuse,
harassment, and other miscellaneous family law matters, both in and out of court.
Mr. Nelson has been praised by clients for a respectful attitude, promptness and honesty.
He can be contacted by phone at (612)321-9402 or or Visit Web Site
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