Custody versus Parenting Time

Many people are going to read the title of this blog entry and wonder:  what do you mean custody versus parenting time?  I want both “custody” and “parenting time”.  I phrase it like this to point out the contradiction that parent-litigants face in the choice of the right words on the decree/paternity order versus more time with their children. Legal custody can be assigned solely to either parent or jointly to both parents. It just encompasses with the authority to make decisions for the minor child.  It is often times does not receive much attention by parents as they prioritize physical custody.

Physical custody is defined by the Minnesota Legislature as the 'routine daily care and control of the minor child'.  Some people subscribe to the belief that the distinction between the two (2) types of custody was just a chauvinistic attempt to give fathers greater rights.  The historical belief is that in the 1970's and 1980’s the male dominated State Legislature had received enough complaints that mothers were always getting “custody” of the children.

To remedy the complaints the Legislature created two (2) types of custody:  legal and physical custody.  In doing so they gave a great definition to legal custody and they lazily assigned physical custody with this “routine and daily care and control” definition.  Contrary to the experience of every sole physical custody order that has been entered since then, certainly no one expects a mother with sole physical custody to be making sure that the children are brushing their teeth and going to bed on time and otherwise 'caring' for them when they are at their father’s house for a weekend.  As such the definition is counter intuitive.

Nevertheless getting physical custody is often times what divorcing parties are primarily concerned with.  Yet they often times do so to the neglect parenting time. Parenting time is the schedule that is set forth as to when the children should be spending time with each parent.  It is often times segmented by weekdays, weekends, holidays, summer breaks, and other key days (such as birthdays).

Two recent cases in the Minnesota Court Appeals demonstrates the counter intuitive nature of the custody designation.  One is a father who is appealing in the award sole physical custody to the mother even though he has 50% of the parenting time.  The second is a mother appealing the Court’s award of joint physical custody to both parents even though the father was only granted 10% of the overnights each month as parenting time. In this circumstance, the parties are disregarding the time they were awarded with their children in appealing the custody label ordered by the District Court.

There are some valid arguments that other attorneys have in regards to the legal effects of joint physical versus sole physical custody including but not limited to the factual grounds necessary to modify either one.  But there are reciprocally other arguments to suggest that their concerns are moot in light of the likelihood that the facts that require a modification of custody are going to require entirely a new parenting time schedule with it too.  Nevertheless the facts of each given case are going to govern whether or not sole physical custody is going to need to be sought.  Further it is for each client to sit down with their attorney to review the entire case and determine what legal rights are most important as it relates to their children’s best interests.