The Most Expensive and Difficult Issue of Divorce
Two issues make divorces expensive: valuing businesses and children. And of all issues, the custody of the children is the most difficult to resolve. The best interests of the children are always the paramount concern of the court and parents.
How individual factors are weighted amongst the parties and the court is the subject of division in many cases. All the while the children are watching this happen, even if the parents think they are not.
In a divorce case, the initial establishment of custody is extremely, extremely important. Two types of custody exist: legal custody and physical custody. Legal custody is the right to be involved in the medical, educational, and religious decisions affecting the child. Physical custody is the right to determine the day-to-day living decisions necessary for raising a child, such as who the babysitter is, what the child’s schedule is, what extracurricular activities the child participates in, and what and how other “administrative” decisions need to be made.
Custody is then awarded solely to one parent or jointly to both. A rebuttable presumption exists that parents of a child will be awarded joint legal custody. No presumption exists on the determination of physical custody, although this precise issue is being hotly debated within the legal community and at the legislature.
The most important thing to remember is that custody is not the same as parenting time. Parenting time is the physical time spent with the child, which cannot be interfered with by the other party.
Understanding the legal standards with regard to the custody is important. At the initial establishment of custody phase, the court is to determine custody on the basis of the “best interest of the child standard.” Once custody has been established, modifying it requires an “endangerment” standard, where the party pushing for the modification has to show that the child’s physical, psychological, or emotional development is endangered by virtue of the other parent’s custody.
This is an extraordinarily difficult standard to achieve. Generally, police reports and social service intervention must be shown, and the danger must be current and severe. Even beyond all of that, custody modification is the most bruising legal fight one can be in, and it will most likely cause the child or children lasting scars. Therefore, by way of comparison, the initial determination of custody becomes more important because of the lower legal standard.
Nonetheless, the holdover philosophy of ages past continues to dominate the current judicial approach to the problem of contested custody proceedings. Custody used to be simple. Generally, when a husband and wife divorced, the wife got the custody of the children and the house and the father got an alimony obligation, a child support obligation, and a right to visitation. Now, both parents are on an equal legal playing field, and since Minnesota adopted no-fault divorce in the early 1970s, the fight has shifted away from the grounds for divorce and more to the children.
Nevertheless, the general outcome is the same (the terms are different, but still the same): the husband still pays maintenance and child support, and he gets a parenting time schedule, just like before. And thus, the big fight is usually for naught.
I must quickly add that each human circumstance is different and every single family situation has different facts, so my statements above are general in nature. However, the gender roles often drive the court to the custody decision. On the Iron Range, men employed in the mines often have schedules that do not correlate as well to raising children as women’s schedules do. And if the wife is the one carrying most of the childrearing responsibilities, the court will often look at that as a family decision made prior to the divorce and not deviate from that in a custody award.
Men should recognize that they are viewed equally under the law, but that the facts are what support the decision of custody. So, if men want a different custody award, then they have to have facts to support that conclusion.
This article, authored by Erik Honkanen, was originally published in The Home Town Focus
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