what is physical custody?
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An in-depth look at physical custody in Minnesota - the different types of custody and how it gets decided in and out of court. http://rokolaw.com/practice-areas/mankato-family-law-attorneys/TRANSCRIPT
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WHAT IS PHYSICAL CUSTODY?
An In-Depth Look at Physical Custody in Minnesota – the Different Types of Custody and How It Gets Decided In and Out of Court
JASON KOHLMEYER MINNESOTA FAMILY LAW ATTORNEY
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If two parents are raising a child but living separately, it is important to
determine where the child should live and who should make decisions on behalf
of the child. These issues are two separate issues and when a custody agreement
is reached, the agreement must specify both who the child will live with and who
has authority on matters related to health, academics, religion and other key
issues. The decision on where the child should live relates to physical custody,
while the ruling on who should make decisions on behalf of the child relates to
legal custody.
WHO GETS PHYSICAL CUSTODY OF A CHILD?
The determination on who gets physical custody of a child is one of the most
important and often most
contentious matters in a divorce.
If one parent is awarded physical
custody, the child will live with and
primarily spend time with that
parent. As such, it is not
uncommon for both parents to
desire to have physical custody.
The decision on who a child should
live with and how a child should split his time is best made by the parents in an
out-of-court negotiation. The two parents can come with a custody arrangement
that makes sense based on who has provided primary care for the child, each
parent’s work schedule and other responsibilities, and what they believe is best
for their family. Often, this results in physical custody being shared.
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Negotiating this type of out of court agreement is typically best done with the
help of an experienced divorce and family law attorney who can help parents to
understand their rights, communicate without animosity, and come to a fair
agreement that works for everyone. Mediators can also provide important
assistance to parents in negotiating a plan for physical custody outside of court.
If parents are not able to negotiate an agreement on physical custody on their
own, then the issue will need to be litigated and a family court judge will need to
issue a ruling on physical custody. In these types of cases, the judge considers
what is in the best interests of the child. Often, this means that physical custody
of the child will be shared among both parents since it is viewed as best for a child
to maintain contact with both his or her mother and his or her father.
TYPES OF PHYSICAL CUSTODY ARRANGEMENTS
There are a variety of different types of physical custody arrangements that
parents can agree to or that a court can order. Different options for how physical
custody should be shared include:
Sole custody. In this arrangement, one parent has physical custody and
the other parent has limited or no right to see the child. This kind of
arrangement is relatively rare and is usually appropriate only if there is a
situation of abuse, neglect or inability on the part of one parent to provide
appropriate care and a safe environment for the child.
Primary custody: In this arrangement, one parent has physical custody
of the child the majority of the time. The other parent sees the child
according to a set schedule that all parties involved are required by the
court to comply with. For example, the primary custodial parent may have
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physical custody but the other parent may see the child every other
weekend and on certain holidays.
Shared custody: In this type of arrangement, physical custody of the
child is shared and the child essentially lives in two places and/or regularly
spends time with both parents. A child, for example, might spend one
month with one parent and then move to the other parent’s home for the
next month.
The decision on which of these options is the right one is going to vary from
family to family. If the court is forced to make the choice on who should get
physical custody, the court will consider factors including who has been the
child’s primary caregiver over his or her life as well as which of the parents can
provide a more stable environment and more connections to community and
extended family.
SHARING PHYSICAL CUSTODY
When physical custody is shared, parents must comply with the agreement as a
failure on the part of the custodial parent to allow visitation is viewed as a
violation of a court order.
If one or both parents wants a change made to the physical custody agreement,
they can determine together that the change is appropriate and simply ask the
court to have the custody agreement altered. If there is a dispute, the parent who
wishes to have the physical custody arrangement modified can go to court and
petition for an alteration. Usually, courts will not change the arrangement unless
at least two years has passed since the last change in the terms of the custody
agreement unless there has been a material change in circumstances.
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PHYSICAL CUSTODY IS AN IMPORTANT ISSUE IN A
DIVORCE OR SEPARATION
Physical custody is a vitally important issue in divorce because it controls the type
of relationship you can have with your child on an ongoing basis. Physical
custody also affects child support obligations as a parent who does not have
physical custody of the child will normally be required to pay support to the
custodial parent.
Because physical custody is such an important issue, it is advisable for parents to
be represented by a qualified and experienced attorney for assistance in resolving
custody disputes.
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About the Author
Jason Kohlmeyer
One of the founding partners of Rosengren Kohlmeyer, Law Office Chartered,
Jason has already had a distinguished career that many lawyers would be
envious of. While at Hamline University School of Law, located in St. Paul,
Minnesota, Jason was elected to sit on the American Bar Association-Law
Student Division’s Board of Governors. Despite rigorous demands traveling
the country representing the law students of 8 states he still made the Dean’s
list while at Hamline.
During law school, Jason was a certified prosecutor under the MN Supreme Court’s Certified
Student Attorney Rules. Prosecuting for Dakota County, the then fastest growing county in
Minnesota, Jason prosecuted nearly every offense in Minnesota including criminal sexual assault,
5th degree assault, a variety of drug crimes as well as first-degree murder.
Rosengren Kohlmeyer Law Office 150 St. Andrews Court, Suite 110 Mankato, Minnesota 56001 www.RokoLaw.com