Frequently Asked Questions
What is custody?
Awards of “physical custody” have traditionally determined matters such as continued residence in the family home, the ability to re-locate with the children, formal child support, daycare contribution and medical care contribution, and other issues. In Collaborative Law, these issues are frequently addressed as separate questions for decision making, regardless of the custody labels which the parents may want to attach to their agreement. “Joint legal custody” is the presumption that both parents should contribute to major decisions regarding the children’s education, health care, and religious upbringing.
Custody continues to be a particularly divisive aspect of family law. It is based on ancient concepts of ownership rights, similar to property law. However, in the context of divorce, the ownership rights refer to children. Custody law continues to change (sometimes it has favored fathers; sometimes it has favored mothers); but it still remains closely tied to concepts of parental “fitness”. Courts are required to conduct backward-looking “evaluations” of past parenting practices to look for strengths and weaknesses in the parenting of both partners. The Courts frequently use outside experts to conduct these evaluations; frequently both partners also hire their own experts to offer different opinions, at great cost.
In Collaborative Law, the partners and their attorneys focus on future planning for the parenting of the children, which is designed to be responsive to the children’s needs. Sometimes formal labels of custody are used; however, it is possible under existing Minnesota law to enter into a “parenting plan” which does not refer to the parents as “custodians”. Parenting plans must address needs such as the financial support of the children, a parenting schedule, health care, daycare, and other major needs. Specifically, parenting plans must designate a method for decision making in the future, especially in the event either parent has a need to relocate a residence.
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