In any divorce with minor children, the court must make an award of the legal and physical custody of the children. By law, a parent with "legal custody" has the right and responsibility to participate in major decisions determining the child's upbringing, including education, health care, and religious training. A parent with "physical custody" maintains the routine daily care, control, and residence of the child. The law creates a presumption that the parties should be awarded joint legal custody. No such presumption exists regarding physical custody, however. Rather, the court awards physical custody of the children based upon its view of the best interests of the child, and the so-called "best interest factors," defined by statute, as follows:
- The wishes of the child's parent or parents as to custody;
- The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
- The child's primary caretaker;
- The intimacy of the relationship between each parent and the child
- The interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interest;
- The child's adjustment to home, school, and community;
- The length of time the child has lived in a stable, satisfactory, environment, and the desirability of maintaining continuity;
- The permanence, as a family unit, of the existing or proposed custodial home;
- The mental and physical health of all individuals involved;
- The capacity and disposition of the parties to give the child love, affection, and guidance and to continue educating and raising the child in the child's culture and religion or creed, if any.
- The child's cultural background;
- The effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518.01, that has occurred between the parents.
- The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
When joint custody is sought, the court also considers the following factors:
- The ability of parents to cooperate in the rearing of their children;
- Methods for 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; and
- Whether domestic abuse has occurred between the parents.
The parties are free to negotiate custody and parenting time (formerly known as "visitation") schedules on their own as part of their divorce. In fact, courts encourage this, as they would rather that the parents make such important decisions, rather than a Judge who has never met the parties or the children, and knows very little about what works best for all involved.
If the parties are unable to agree on custody, most counties typically have the parties first go through a custody evaluation with the court services department. This involves someone with a social work background meeting with the parties, the children (if old enough), and any other relevant individuals so that the evaluator can gather all of the information needed in order to make a recommendation to the court. The evaluator can also review any relevant medical, school, or counseling records. The report issued by the evaluator typically goes through the best interest factors from above and discuss how they affect both parties to the dissolution.
In some instances, the parties may also have a private custody evaluation performed, although these are expensive as they can exceed $10,000 in cost. The report issued by the custody evaluator is not binding on the court, although it is usually highly persuasive. If the parties still disagree on custody following the issuance of a custody report, the matter proceeds to a trial, where the court will make an award of custody after hearing all of the testimony and relevant evidence.
Please contact McGraw Law Firm for more information. 651.209.3200