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So What is Custody Anyway?

Posted by Attorney Stephen Hance | Mar 29, 2013 | 0 Comments

Many parents facing a contentious divorce or breakup with their spouse or significant other find themselves asking:  What is custody?  How do I establish custody?  What determines custody?  Why is establishing custody important?  Well, regardless of your circumstances, the answers to these questions are always the same.

What is Custody?

There are actually two forms of “custody” that are relevant to family law: legal custody, and physical custody.  As defined by statue, legal custody means “the right to determine the child's upbringing, health care, and religious training.”  Minn. Stat. § 518.003 Subd. 3(a).  Legal custody relates to major life decisions for your child such as, what school they go to, what type of medical treatment they receive, and what religion (if any) they will observe.  In Minnesota, there is a presumption, which may be rebutted, that the parents sharing joint legal custody of a child is in the child's best interest.  Minn. Stat. § 518.17 Subd. 2(d).

Physical custody on the other hand is defined by statute as the “routine daily care and control, and residence of the child.”  Minn. Stat. § 518.003 Subd. 3(c).  Physical custody relates to the day to day decisions for your child such as, what food your child will eat for breakfast, what their bedtime will be, etc.  Physical custody also relates to the child's residence, i.e. where the child lives.  Most often, any custody determination will be subject to a parenting schedule involving both parents, and the child's residence is generally not an issue.

How Do I Establish Custody?

Traditionally, custody rights are established as part of the divorce process.  If you are married, and getting divorced, your divorce proceeding will include establishing your custodial rights.  However, more and more these days, couples are having children together without getting married. If you are an unmarried parent and want to establish your custodial rights then you must initiate a custody proceeding in a court in the county where your child lives.  This is done by preparing, serving, and filing a petition seeking custody and/or parenting time.

What Determines Custody?

In Minnesota, the court's standard in establishing custody is what is in the best interest of the child.  Once a custody proceeding has been initiated, there are two ways custody can be determined: (1) by agreement between a child's parents, or (2) by a judge.   If you and your co-parent can agree to a custody arrangement, then most judges will adopt your agreement, barring any extreme circumstances, so long as they find that it is in the best interest of the child.

If you and your co-parent cannot agree to a custody arrangement, then the court considers a number of factors to determine the type of custody arrangement that is in the best interest of the child.  The factors a court will consider include, but are not limited to: the wishes of the parents, who the child's primary caretaker is, the child's level of intimacy with each parent, the length of time the child has lived in a stable environment and the desirability of maintaining continuity, the physical and mental health of each parent, and the child's cultural background.  (For all of the factors considered see  The court must weigh all of the statutory factors which means having a good advocate to represent you is extremely important in establishing your custodial rights.

Why is Establishing Custody Important?

While your custodial rights as a parent may seem self-evident to you, in the eyes of the law, your rights are not established until the court has signed off on them.  This is particularly important with parents who were not married.  Establishing custody is important because it defines your rights relative to your child.

The typical scenario unfolds as follows: following a breakup, Parent 1 and Parent 2 have an informal agreement as to parenting time and child support regarding their child, but nothing established by the court.  Then, out of the blue, Parent 1 decides that Parent 2 cannot have any more time with their child.  This may be because Parent 1 feels they are entitled to more child support, Parent 1 believes they know what is best for the child, or Parent 1 just doesn't like Parent 2's new boyfriend/girlfriend.  Whatever the reason, Parent 2 is now left with having not only to go to court to fight to see their child, but Parent 2 must also fight for their custodial rights.

Another scenario commonly seen involves the child's upbringing.  Same Parents as above, but now Parent 1 wants the child to go to the religious private school they went to growing up, and Parent 2 is morally opposed to that religion and wants the child to attend public school.  Just as above, Parent 2 not only has to fight Parent 1's decision regarding the child's education, but Parent 2 also has to fight for the right to even be a part of the decision-making process.

It is much better to preempt these situations by establishing your custodial rights before a problem arises.  If Parent 2 has already established that they have joint legal and physical custody of a child, then instead of having to establish in court what rights Parent 2 has, Parent 2 can fight for enforcing their rights, be it for their court-ordered parenting time, or getting to have a say in the child's upbringing.

This is just an overview of one of the many complex and heavily nuanced issues in family law.  If you and your ex are unable to come to an agreement on the issue of custody, then it is essential that you have experienced and skillful representation to help you navigate any custody battle.

About the Author

Attorney Stephen Hance

Steve represents and advises clients that are dealing with business and real estate disputes. Steve is an investor and business owner, and his approach is unique from other attorneys.


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