Every divorce is different, but one issue that can be consistently contentious is that of child custody.

Minnesota law makes no presumption of whether joint physical custody or sole physical custody is in the child’s best interest. As joint physical custody becomes more and more common, it may not be appropriate in all cases. With a DIYvorce, the ideal is that you and your spouse have reached an agreement on child custody, or are close to one. But if not, read on.

First, it is important to understand that custody is divided into two parts:

legal custody and physical custody. Legal custody means the ability of one parent to make the important decisions, such as education, medical decisions, or religious upbringing. Sole legal custody means that parent doesn’t need to consult the other parent before making those types of major decisions. Physical custody refers to the amount of physical parenting time each parent has. It means that the physical care of the child is divided between the two different households. Parents do not have to equally share parenting time in order to have joint physical custody.

One assumption the law—and most people—make is that maintaining as close a relationship as possible with each parent is in the child’s best interest. In a standard courtroom divorce, one party who wants to be named sole custodian of the child has to demonstrate specific factors for the court to examine. The court will consider whether having only one parent make the important decisions is harmful to the child. This type of proof would include, for example, that one parent consistently refused to seek medical treatment for a child when it was necessary and appropriate.

The court will consider whether the parents are able to support the relationship between the child and the other parent. If it finds that one parent undermines the relationship between the other parent and child, it may consider sole physical custody for the parent who best supports the parent-child relationship. Finally, the court will also examine whether one parent has been unable or unwilling to communicate with the other parent. This type of proof will require more than just passing silence. It will need to be an identifiable pattern of an unwillingness to cooperate and discuss the child.

The DIYvorce process is created for people who do NOT have these types of issues still remaining as they dissolve their marriage. But if the issues do come up, consult with your DIYvorce support team for advice.


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