For parents going through a divorce or separation, one of the first questions that comes to mind is the designation of custody. Minnesota law labels two types of custody of children – legal and physical. Legal custody is defined by Minn. Stat. § 518.003 as “the right to determine the child’s upbringing, including education, health care, and religious training.” Physical custody is defined as the routine daily care and control of the child and can also include the designation of one parent’s home as the primary residence of the child.
Most separated parents in Minnesota share joint legal custody of their children. This means that “both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.” By sharing joint legal custody, the parents are required to make major decisions together for their children – one parent cannot unilaterally override the other parent. Many parents also have custody orders that grant one parent sole physical custody, or states that one parent’s home is the “primary residence” of the children.
So, what happens when both parents share joint legal custody, but one parent has sole physical custody or is the primary residence for the children, and the parents disagree on a major life decision for the children? A very recent Minnesota Court of Appeals decision discussed this issue as it relates to choosing a school district. In Matter of Wolf v. Oestreich, mother and father shared joint legal custody of their child pursuant to their agreement, but father’s home was designated as the primary residence. Just before the child was to start fourth grade, father moved to a new school district and decided to enroll the child in the district of his new home – without the consent and agreement of mother. Father argued that because his home was designated as the primary residence for the child that he got to unilaterally make the decision of where the child was enrolled. The Court of Appeals did NOT agree and determined that just because father’s home was labeled as the child’s primary residence, the joint custody label still applied to the school decision and that father needed the consent and agreement of mother to change the child’s school, despite his move.
The decision in Wolf v. Oestreich is a reminder to all separated parents that joint legal custody is taken seriously by the court. Even if you feel strongly that your opinion is the right or logical one, the other parent needs to be on board and affirmatively agree before any changes are made. The best way to protect yourself is to get the other parent’s agreement written down – even an email or text message is better evidence to the court that you acted in good faith if the other parent accuses you in the future.
Finally, many parents do not know that no matter what your custody labels are, all parents are entitled to certain rights regarding their children. Specifically:
(1) The right of access to, and to receive copies of, school, medical, dental, religious training, police reports, and other important records and information about the minor children;
(2) The right of access to information regarding health or dental insurance available to the minor children;
(3) The right to be informed by the other party as to the name and address of the school of attendance of the minor children;
(4) The right to be informed by school officials about the children's welfare, educational progress and status, and to attend school and parent-teacher conferences. The school is not required to hold a separate conference for each party, unless attending the same conference would result in violation of a court order prohibiting contact with a party;
(5) The right to be notified by the other party of an accident or serious illness of a minor child, including the name of the health care provider and the place of treatment;
(6) The right to be notified by the other party if the minor children are the victim of an alleged crime, including the name of the investigating law enforcement officer or agency. There is no duty to notify if the party to be notifiedis the alleged perpetrator; and
(7) The right to reasonable access and telephone or other electronic contact with the minor child.
This means that even if you do not share legal custody of your children, you can still be involved in their education and medical care, unless a no contact order says otherwise.
If you are struggling with legal custody decisions and would like to speak to an attorney about your options, call 612.436.7100 to schedule a free consultation with our experienced family law attorneys.