Physical Custody Doesn’t Have to Be a Thing in Minnesota

September 25 Dan's Blog, Divorce in Minnesota, Family Mediation, Mediation vs. The Law, Lawyers, and Courts

Derek and Monique have two children together, ages 7 and 3.  For the last nine months, the kids had been living with Derek full time.  Derek, with the help of his new partner, Sara, had stepped in while Monique got her life in order.  Monique had started a new job with unpredictable hours, so she couldn’t commit to spend any specific days or nights with the kids.  In the past, the children had lived with Monique, but for the last nine months Derek and Sara had taken nearly full responsibility.  Derek, Monique and Sara were all accepting of this arrangement for the time being, but Sara felt strongly that Derek should have “sole physical custody” of the kids, considering how little involvement Monique had had lately.
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The court first got involved when the oldest child was two years old and Monique wanted Derek to pay child support.  Child support was ordered, but there had never been any need to clarify “custody” or “parenting time” until Derek and Sara felt the need to do so after the children had been with them for a few months (they also understandably wanted to stop paying child support to Monique who wasn’t incurring any child-related expenses at that time).
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Technically, the law requires that there be a physical custody designation.  But judges understand that that designation creates unnecessary conflict, so they are often willing to simply leave that label out of their orders.
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In the case of Derek and Monique, their Ramsey County Judge assured them that they could just skip it.  It wasn’t acceptable to Monique that Derek have “sole physical custody” of the kids.  Considering that she had cared for them for most of their lives and planned to be very involved in their care in the future, “sole” for Derek just wasn’t right.  At the same time, given the past nine months, Derek, and especially Sara, didn’t think “joint” was the right word either.  The judge’s willingness to keep “physical custody” off of the order cleared the way for the three parents to return to focusing on collaborating to take the best possible care of the kids.
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So keep in mind that you have the power to rise above the law.  You don’t need to buy into the adversarial assumptions of the legal system.  And sometimes you’ll even run into an enlightened judge who can help.
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