Understanding Child Custody: Legal and Physical Explained

Custody

When it comes to custody, understanding the key types—"legal" and "physical"—is crucial, as they serve different functions in the lives of parents and their children.

What is Legal Custody?

Legal custody refers to a parent's right to make significant decisions about their minor children. This includes choices related to education, health care, and religious upbringing. Under most state laws, there's a strong presumption that parents should share legal custody. Importantly, holding joint legal custody does not provide a basis for reducing child support obligations.

What is Physical Custody?

Physical custody, often understood simply as "custody," involves the child's primary physical residence. Alternatively known as physical placement or primary physical residence, this aspect of custody can vary by state. In Minnesota, for example, the distinction of physical custody has become less meaningful, with the focus shifting to the parenting schedule in place.

How is Custody Decided?

In resolving custody disputes, the Court's primary responsibility is to determine the arrangements that align with the "best interests" of the children. In Minnesota, this involves considering twelve statutory factors. These factors encompass various aspects of the child's well-being and parental involvement.

What if there are Allegations of Abuse?

Allegations of abuse are serious matters in custody proceedings. They often lead to restraining orders, which can impact custody decisions significantly. The legal presumption against awarding physical custody to a domestic abuser is strong. Consequently, individuals with restraining orders or domestic assault convictions face significant barriers to obtaining physical custody. Hence, it is critical to defend against allegations of abuse rigorously to maintain custody rights.

What if the Allegations of Abuse are False?

False allegations of abuse, whether sexual or physical, are taken just as seriously in legal proceedings. Many states have statutes allowing courts to factor in false abuse claims when making custody decisions. Such allegations can also lead to criminal charges if made to gain an advantage in custody disputes.

Can My Children Decide Where They Will Live?

There is a common misconception that children can choose their living situation. Typically, a court may consider the preference of a child once they reach an appropriate age and maturity level. However, courts seldom give substantial weight to a child's preference before the age of twelve. Even then, the preference is one of many factors considered.

Will the Court Talk to the Children?

Parents often wonder if their children will testify in custody cases. Despite varied opinions, psychological experts believe that being a witness can be traumatic for children. Courts generally avoid calling children to testify unless absolutely necessary. In rare instances where children's testimony is required, a Guardian Ad Litem may speak with them and convey their interests to the Court, or the Judge may meet with them in an informal setting, such as chambers.

Maury D. Beaulier is a recognized leader in divorce and family law, a sought-after speaker, and has appeared on national programs regarding family law and father's rights issues. For further inquiries, call 952-442-7722.