One parent wants the children to attend a Methodist church; the other wants the children raised Catholic. One parent wants a child to receive a vaccine; the other doesn’t. One parent wants the children to attend private school, while the other parent wants the kids to go to a public school. Who gets to make the decision? If the parents can’t agree, what then?

First, Some Definitions

Legal custody is defined by Minnesota Statute as the right to determine the child’s upbringing, including education, health care, and religious training. “Sole legal custody” is when one parent has the exclusive right to make these decisions for the children, and “joint legal custody” means that the parents have equal rights to make these determinations.

Presumption For Joint Legal Custody

In Minnesota, there is a rebuttable presumption that joint legal custody is in the children’s best interests. This means that joint legal custody is, for lack of a better term, the “default.” It will be ordered unless one of the parents can fight the uphill battle of proving that joint legal custody is not in the children’s best interests. However, this presumption only applies if at least one of the parents requests it. Therefore, if one parent doesn’t request legal custody, or if both parents only request sole legal custody, then there is no “presumption,” and the court is free to grant whatever form of legal custody it deems to be in the children’s best interests.

The presumption will not be applied in cases where domestic violence has occurred. “Domestic violence,” in this context, is defined by Minn. Stat. § 518B.01. It includes things like any type of physical harm by one parent to another, the infliction of fear of physical harm, threats to commit a violent crime, criminal sexual conduct, and interference with emergency calls. A person doesn’t have to be convicted of domestic violence in a criminal court for the presumption to be rebutted. It simply has to be found to have occurred by the court in the family law case.

However, even if the court finds that domestic violence has occurred, that “does not impose a rigid assumption that, no matter the nature or the context of domestic violence, one parent or another is unable to serve a child’s best interests.” The court will consider the nature and context of the domestic violence and the implications on the children’s safety, well-being, and developmental needs. If “substantial countervailing evidence” is presented to suggest sole legal custody is not in the children’s best interests, a court is justified in awarding joint legal custody, even when domestic violence has occurred.

Factors Considered By The Court

When determining whether it will award joint legal custody, a court must evaluate, among other things, “the cooperation ability of parents, their dispute resolution methods, and their willingness to use these methods.” Of course, these factors are evaluated within the larger framework of the children’s best interests, but the parents’ ability to cooperate is uniquely important to legal custody determinations. In fact, joint legal custody should only be granted when the parents can cooperatively deal with parenting decisions. If there is significant animosity between the parents, if the parents cannot communicate, or if the parents use legal custody as a weapon against each other, then clearly the children’s interests cannot be best accommodated through joint legal custody.

This doesn’t mean that the parents must have a totally conflict-free co-parenting relationship. The parents can reach an occasional impasse, or have some level of ongoing conflict, and still be awarded joint legal custody. For example, in Zander v. Zander, the parents couldn’t agree on whether the kids should be able to play violent video games, whether the daughter should have her ears pierced, and other similar parenting issues. The parents were unable to communicate about issues, to some extent, and for some periods of time. However, they were able to work out other issues, like a holiday schedule, and were able to successfully use a parenting time expeditor to resolve disputes. Therefore, the Minnesota Court of Appeals stated that although some difficulty was present in the parenting relationship, the district court properly awarded joint legal custody.

If the parents in a joint legal custody arrangement cannot agree on a particular issue, that doesn’t mean the issue cannot be resolved, or that joint legal custody cannot continue. Instead, that issue can be presented to a parenting time expeditor or directly to the court for resolution. Joint legal custody is only imperiled when the parents consistently demonstrate that they cannot cooperate. If the parents continually disagree on many issues over a long period of time, then at some point the court may determine that joint legal custody simply cannot work and award sole legal custody to one of the parents.

Modification

After legal custody has been awarded by the court, whether sole or joint, then a parent can only have it modified by showing the child’s physical or emotional health is likely to be endangered or the child’s emotional development impaired.

Conclusion

If you have questions regarding this topic, then seek the advice of a family law attorney. Contact the SW&L family law team at 701-297-2890 or email us at: info@swlattorneys.com.

The information contained in this article and on this website is for informational purposes only. Do not rely on information on this website as legal advice.

Disclaimer