Exception to the Rule

The Minnesota Supreme Court has a guide for parents who are trying to determine visitation. Unfortunately, I have never heard of many attorney’s who direct their clients to this document. They really should make people aware of it.

The MN family courts assume certain standards when trying to determine parenting time. They assume that involvement on the part of both parents is beneficial to children. They assume that one parent has physical custody of the child (although this may change at some point. MN is considering making joint custody the presumption). They assume that one parent has the day to day care of the child. They also assume that both parents are fit parents and both are willing to care for the child. They assume that both parents are emotionally and physically healthy and able to cooperate with each other with regard to co-parenting.

These are the things in the judge’s mind when there is a custody or parenting time dispute. Custody is not just a matter of where the child lives. There are two kinds of custody, physical and legal. Physical custody is about where the child’s address is. In this case, one of the parents is responsible for the day to day care of the child. Legal custody refers to decision making for the child. Usually parents share legal custody and are expected to decide matters cooperatively regarding education, matters related to the child’s health and any religious matters involving the child.

From my own experience, I wanted sole custody, but several lawyers that I consulted with told me that I would never get sole legal. I also found that most lawyers don’t think legal custody is a big deal. They put more emphasis on physical custody. That is a mistake. After many long and painful years, I filed a motion to grant sole legal custody to me. I was successful in that endeavor. After 8 years of ongoing drama, I was granted sole physical and legal custody. I was successful, not only because I had a great lawyer, but also because of the ongoing struggles in trying to co-parent with my kid’s dad. There were issues in our lives that were exceptions to the joint legal custody rule, but I didn’t know that in the beginning. Even though I had told my first lawyer about these issues, she still told me, “You’ll never get sole legal custody. I’ve never seen a judge grant it, and it’s no big deal anyway. It’s just so your ex can get information about the kids’ school, doctors and religion.” Wow. Was this a misguided statement! A few years later, tens of thousand dollars, and a very tumultuous history with my children’s father, a lawyer gave me this guide. He was just trying to help me understand the court’s reasoning. What stood out to me was that there are exceptions to the rule and people should be made aware of this, especially when they have informed their attorney that their case is not the usual case. If your case has any of these issues, the courts have spoken that those cases are exceptions to the rule. You should seek sole custody, both physical and legal.

What are these exceptions? Child abuse, Domestic violence and chemical dependency. Why would those give the court pause in granting joint legal custody? The court assumes that the parents will eventually work out a more cooperative relationship for their child, but if there are abuse issues or chemical dependency issues, it’s unlikely that can happen. An abusive or chemically dependent person is not capable of putting the needs of their child first. Anyone who has ever dealt with an alcoholic, for example, can tell you that there is no point. You cannot reason with this person. They are blamers and rarely accept any consequences for their behavior. In the case of abusers, their main concern is to exert power over their target. If the other parent is the target, they will not be interested in coming into agreements. They will want to inflict pain.

I can tell you from experience that when you are trying to make big decisions with an emotionally unhealthy person, nothing will get resolved. We were given a Parenting Consultant to make decisions for us and then still, things did not get done. Chaos endued throughout my children’s worlds and their education, health care and other areas were affected. A parenting consultant is not the answer in these cases. They will only function as a tool for the abuser/alcoholic to use as a weapon against the other parent. Decisions will either never get made, never have any follow through, or will take weeks, months or years to determine. Educators and Health Care providers will be confused. You and your attorney may get confused, as well. I have to add that the scope of a parenting consultant is very broad and if they decide that decisions involve more than education, health care and religion, which many see to do, your life and your children’s life will be unbearable.

Read through the Supreme Court’s Guide to Child Focused Parenting Time. If you have any concern that your case is an exception to the rule, do not accept a lawyer’s opinion that you cannot win sole physical and legal custody. It will be a battle, it will be costly, but it can be done. If things are so bad that the court is recommending a Parenting Consultant on your case, most likely, the better answer would be to go for sole custody so that one parent has the decision making responsibility for the children. That would end the conflict, in my opinion.

See my book recommendations for some helpful titles.

*photo: Boy and his Teddy by Louisa Stokes

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