What is Joint Legal Custody?
At a minimum, all parents are going to address joint legal custody. Minnesota Statutes Section 518.003, subdivision 3 provides: "Joint legal custody" means that the parents shall share the rights and responsibilities in the upbringing of the child and that the parents shall cooperate and make decisions in the interest of the child. Minnesota Statutes Section 518.003, subdivision 18 provides: "Custody"—any physical custody (care and maintenance of the child) or joint legal custody (rights to participate in raising the child) is given to both parents unless otherwise ordered by the court. Because joint legal custody is just one of the two forms of custody in Minnesota, it is important to define what custody means before going further. Physical custody is the physical care and control of the child. This includes the physical time the children are actually with you, not the amount of time you have the right to be with them under your parenting time schedule, but actual time spent with you. Custody also includes the routine daily decisions in the children’s lives, such as creating and enforcing bedtimes, the children’s curfew, holidays, weekends, shopping trips for clothes, and where those clothes end up being.; It is teaching the children their appropriate manners and values. Custody means brushing their teeth and getting them ready for school. Essentially, custody is a parent’s day-to-day care of the children. Joint legal custody is entirely different. Joint legal custody is about decision-making. It is about parenting time schedules, education, religious training, health care decisions, and extra curricular activities in which the children participate. It is choosing and making sure the children attend school , making and keeping doctor appointments and parent teacher conferences. It is about participating in activities involving the children that fall outside of your scheduled parenting time with them. Joint legal custody decisions are about the future of the children and how to best achieve that future. It is about your children’s college and career decisions. It is about making the right decisions to ensure that your children are healthy, happy, and well-adjusted adults. Joint legal custody is an extremely important concept of Minnesota family law. Joint legal custody orders are designed to ensure that both parents continue to have the right to participate in their children’s lives even after a divorce. It is designed to prevent one parent from unilaterally acting without the other. Without joint legal custody, one parent essentially has complete control over the children’s upbringing and future. Parents can share joint legal custody even when one parent receives primary physical custody. If there is no cooperation between the parents, and shared joint legal custody would harm the children, the Court can address joint legal custody under Minnesota Statutes Section 518.17, Subdivision 3. However, parents can agree to joint legal custody and that will become the order of the court. Parents can also share joint legal custody with designated areas of final decisions. Essentially, some parents could agree that when there is a disagreement on the type of medical treatment for the children, one parent would have the final decision-making authority. Another parent could agree that when the children reach teenage years, they will no longer have any influence on the children’s extracurricular activities, but the other parent will. The agreement of parents as to how they will jointly raise their children is only limited by the parent’s abilities to communicate weekly, and the constraints of the family law court system.
Minnesota Law on Joint Legal Custody
For parents living separately in Minnesota, joint legal custody might seem like the logical choice. Under Minnesota laws, joint legal custody gives both parties equal rights in making major decisions on issues concerning the child. There are a few factors that the court will consider when determining whether to grant joint legal custody status.
The first thing the court will look at is whether or not the parties have a history of domestic abuse. To make this determination, the court will check for:
In addition to determining a case history of domestic abuse, the other parent must not have committed egregious conduct such as felony harassment, sexual abuse or malicious persecution.
The next factor the court will look at is which parent is more likely to encourage and permit frequent and continuing contact between the child and each parent. Minnesota laws state that the court will not grant joint legal custody if there is: When the court decides to award joint legal custody, it might decide to establish written parenting plans that both parties need to follow. A parenting plan contains numerous elements, including:
Child support laws in Minnesota will also affect the custody decision. Under Minnesota laws, all Minnesota courts have the duty to require a non-custodial parent (one who spends less time with the children and is responsible for paying child support) to present evidence proving that they are paying or will pay the amount that was established by the Minnesota Child Support Guidelines. The non-custodial parent must have a good reason not to, which the courts will look for when evaluating the evidence.
Decision-Making with Joint Legal Custody
In Minnesota, when parents have joint legal custody of their children, they are expected to make decisions together as a unit about the important aspects of the children’s lives. This requires that parents work cooperatively to resolve these common decisions, which promote the best interest of their children. Parents are not controlled by the other parent; rather, they must confer with each other and, in essence, make decisions together.
What type of decisions do you have to make together?
In most divorces, there are commonly agreed upon areas that parents find themselves making decisions for their children. These involve:
- Education: Public, private, or home school and decisions relating to educational support services and extra-curricular activities.
- Health Care: Routine health care including dental and vision care, as well as elective medical, dental, or psychological treatment.
- Religion: Religious upbringing and religious schooling.
Traditionally, parents are expected to make decisions concerning these issues. When making these decisions, parents are challenged to try and resolve their disagreements and make the decision for the benefit of their children.
Disagreements happened when I was married! Now we are divorced! What if we don’t communicate?
In many cases, communication is difficult between parents following their divorce. If parents are communicating effectively, there is no reason your joint legal custody cannot work. The question now becomes, what do you do if you and the other parent don’t communicate, or the other parent does not share the information, or for some reason, the relationship continues to deteriorate?
Parents in these circumstances should consult with their attorneys and/or a mediator to try and resolve these issues. Sometimes the issues become so difficult that it would be necessary to seek the Court’s assistance. In those cases, the parents would ask the Court to decide for them what should happen and the Court would issue an order that defines how the decision is to be made, as well as what happens if the parents cannot resolve the issue.
You and the other parent have the ability to define what the meaning of joint legal custody means for the two of you. In addition, you have the ability to specify in your Judgment & Decree what happens if you and the other parent cannot resolve a decision regarding your children. Very few cases every become so bad that parents must use the Court to resolve an issue over the children, but it very well can happen, and you need to prepare for that with your attorney.
Pros and Cons of Joint Legal Custody
When joint legal custody is awarded, there may be some benefits to you as a parent and your children: Research shows that children with both parents actively involved in their lives tend to do better academically, socially, and emotionally. They are less likely to get into trouble, have better relationships with their peers and siblings, and have a better sense of self-concept and self-esteem.
While these benefits can be tremendous, there can also be many challenges coordinating schedules and activities:
Despite the potential challenges of coordinating schedules and activities with an ex-spouse or partner, joint legal custody can be a blessing for many because it allows both parents to have an equal role in important decision-making processes in their children’s lives.
Many parents appreciate the ability to stay involved in all aspects of their children’s lives, while their kids benefit from the increased opportunities that having two active parents can create.
If the need to juggle schedules or differences of opinion on a major decision begins to weigh on you, remember the vast majority of divorcees and co-parents put their children first and remain committed to working as a team and their children reap the benefits.
How the Courts Look at Joint Legal Custody
Determining whether joint legal custody is appropriate in a given case is a complex decision made by the courts based on the best interests of the children and with consideration of a number of different factors. The factors the courts consider when making this determination, though not exhaustive, are (1) the parents’ ability to cooperate in the rearing of the child; (2) methods for resolving disputes regarding the child’s needs and welfare; (3) the length of time the child has lived in a stable, satisfactory environment; (4) the effect on the children of any change in the environment; (5) each parent’s willingness to support parenting time and involvement with the children; and (6) the cultural background of the parents and the child. Apparently, the court also considers other, pled factors, such as domestic abuse, in making decisions regarding joint legal custody. As an initial matter, the presumption is that unless the parents are engaged in some kind of domestic abuse, a presumption exists that there should be joint legal custody, evidenced by the following code provision: In an action for the dissolution of marriage . . . the court shall . . . enter appropriate orders for joint legal custody and joint physical custody of the children of the parties, if it finds that the parents are competent, willing, and able to carry out the responsibilities of both forms of custody . . . and if joint legal custody is in the best interests of the child. The Minnesota Statutes 518.17 Subd.2(b) moreover enumerates a non-exhaustive list of factors considered in deciding whether each of the parents is willing and able to cooperate in rearing the children (i.e. communicate, meet the children’s developmental needs, and agree about major decisions): (1) the ability of the parents to court-ordered conditional change custody arrangements or other arrangements; (2) the parents’ willingness to share legal rights and responsibilities and the physical care and upbringing of the children; (3) any adverse parenting results; (4) the distance between the parents; (5) allegations of abuse (not including domestic abuse); (6) the child’s preference , if the child is old enough to express a preference; and (7) the benefit to the parents and children of maximizing parenting time (i.e. "the frequency and methods of the children’s contact with the parents, including whether frequent and continuing contact is practical because of geographic distance, or work hours of the parents."). The Minnesota Supreme Court has held that a finding of domestic abuse alone should not be sufficient to deny an award of joint legal custody because the findings of domestic abuse must take into consideration the context and circumstances of the domestic abuse. The Court in Keller v. Keller, 649 N.W.2d 653, 663-664 (Minn. 2002) held that abuse of one parent may not be sufficient to find the parents unable to cooperate to rear the children. To apportion legal custody, the courts require clear and specific findings in the record (as opposed to a recitation of the facts) and detailed analysis by the trial court. The record must indicate whether each of the parents lacks the ability to carry out the duties in joint legal custody or is unwilling to do so. Therefore, it is critical that the parents comply with the court’s order for joint legal custody on the parenting issues that the court ordered the parents to jointly make decisions concerning. Once the court orders joint legal custody, a parent’s actions can play a huge role in whether a court awards sole legal custody to the other parent for lack of cooperation. The burden of proof to modify joint legal custody lies on the parent seeking the change, by clear and convincing evidence. Ultimately, the court must find by clear and convincing evidence that the parent seeking sole legal custody meets the requirements of statute after it has firmly established that everyone is committed to providing joint legal custody and that it is in the best interest of the children.
Changing Joint Legal Custody
Modifications of joint legal custody arrangements require a consideration of the "best interests of the child." Modifications of orders of legal custody should satisfy the "best interests" requirement to obtain court approval. Significant changes of circumstance are necessary to modify existing orders of legal custody. An example of a change of circumstance might include the inability of the parties to cooperate with each other which is having a negative impact on the children. An example of legal custody modification not being found to be in the best interest of the children might be when the primary residential parent simply desires to move, to remove such move, by court order, from the state of Minnesota. The court, in evaluating a proposed residency change/move may consider such factors as: The quality of the custodial parent’s relationship with the child, proximity of the good faith actions of the other parent (as a motive or lack of motive), problems caused by the lack of parenting time with the children, the degree of hardship involved to each party, the relationship between the child and the child’s other parent, the age and needs of the child, the effect upon the emotional, educational, or physical development of the child, the financial considerations of the move and the benefit that the change will confer. Minnesota Statutes provide that a joint legal custodian must obtain permission from the other parent before changing a child’s residence that would significantly affect the child’s relationship with the other parent. Minnesota courts have jurisdiction to grant permission to change legal residence even if changing residence out of state would otherwise deprive the court of continuing jurisdiction under the Uniform Child Custody Jurisdiction Act. On appeal from the trial court’s decision regarding legal custody, it is the child who is the aggrieved party. Thus the doctrine of Invello v. Lundy, 61 N.W.2d 644 (Minn. 1953) does not apply.
Help for Parents and Legal Aid
Having a qualified family law attorney is important when dealing with child custody issues. Child custody disputes can quickly become complicated. A clear understanding of the law will help you develop your strategy and anticipate the actions of the other parent. Having legal representation can be extremely beneficial in any family law matter. An experienced attorney will help you navigate through the family court system in Minnesota.
Although this article focuses on joint legal custody , there are many resources that speak on other aspects of child custody such as physical custody which is arguably a more important determination. Additional information on child custody as well as parenting time can be found on the Minnesota Judicial Branch website.