Legal Custody
- by Eric C. Nelson, Attorney

In Minnesota, custody is defined in terms of legal custody and physical custody. The scope of this article is legal custody.

Legal custody is defined as "the right to determine the child's upbringing, including education, health care, and religious training." [1] Most of the time, parties to a divorce are awarded joint legal custody, which means that "both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, including education, health care, and religious training." [2] In deciding whether to award joint legal custody, the Court considers the following factors:
  • The ability of the parties to cooperate in the rearing of the children.
  • Methods of resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods.
  • Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing.
  • Whether domestic abuse has occurred between the parties. [3]
If either party requests joint legal custody, then it is presumed that joint legal custody is appropriate, and joint legal custody will be granted unless the other party is able to prove that joint legal custody would not be in the child's best interests. [4] (This presumption does not apply if the Court finds that domestic abuse has occurred between the parties). [5]

In my experience, the Court will almost always award joint legal custody, unless there are strong reasons not to, such as a very serious inability to cooperate or communicate, [6] or serious parental disfunction on the part of one parent—e.g., serious alcohol or drug addiction, physical or sexual abusiveness, or a long history of a lack of involvement in the children's parenting.

Should parties with joint legal custody ever reach an impasse over a legal custody issue, such as the choice of school, day care provider, church, whether to take Ritalin, etc., then the proper procedure is to bring a motion and let the Court decide. [7] When this happens, the Court must decide using a “best interest of the child” standard. [8] There is no preference given to the custodial parent. [9]

  1. Minnesota Statute section 518.003, Subdivision 3(a).
  2. Minnesota Statute section 518.003, Subdivision 3(b).
  3. Minnesota Statute section 518.17, Subdivision 2.
  4. Minnesota Statute section 518.17, Subdivision 2.
  5. Id.
  6. Veit v. Veit, 413 N.W.2d 601 (Minn.Ct.App. 1987) (reversing sole legal custody award where the lack of cooperation on which is was based was found to be of recent origin and the result of the dissolution proceeding).
  7. Novak v. Novak, 446 N.W.2d 422 (Minn.Ct.App. 1989).
  8. Id.
  9. Id.