Written by attorney Eric Carlisle Nelson | Mar 20, 2011

How Important is the Physical Custody Label in a Minnesota Divorce or Minnesota Child Custody Case?

“Physical custody" is defined as "the routine daily care and control and the residence of the child." [1] In practical terms, it generally refers to who maintains the "home base" or “primary residence" of the children, and who has the children most of the time, particularly during school. Like legal custody, physical custody can be “sole" [2] or “joint". “Joint physical custody" means that "the routine daily care and control and the residence of the child is structured between the parties." [3] Unlike joint legal custody, joint physical custody is the exception rather than the norm, and is usually only granted if both parties agree to it. Judges often tell litigants not to argue over the physical custody “label." They often say that it is not important. Years ago, the physical custody label had a major impact on the issue of child support and out of state moves. Because of statutory changes, that is no longer the case at all. There is debate in the bar as to what if any legal impact the physical custody label has now that those two considerations have been removed. That said, although the legal impact of the physical custody label is debatable, if you are the primary parent, it is still preferable to have sole physical custody than joint physical custody. Conversely, if you are not the primary parent, it is still preferable to have the joint physical custody label than not to have it. This is because of the uncertainty over how a future court, evaluator, parenting consultant, guardian ad litem or others might interpret that label. Footnotes: 1. Minnesota Statute section 518.003, Subdivision 3(c). 2. Another term for “sole physical custody" is “primary physical custody," which means the same thing. 3. Minnesota Statute section 518.003, Subdivision 3(d).

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