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Do mothers always receive custody of children in a divorce?

On Behalf of | Oct 19, 2022 | Child Custody

When people in Minnesota go through a divorce they need to make determinations about custody and parenting time.

There are two types of custody, legal and physical. Legal custody refers to the ability to make decisions about the child’s education and other important matters. Physical custody refers to where the child lives and how much time they spend under a particular parent’s care.

Parents can either have joint custody or one parent may have sole custody of the children. Most parents have some form of shared legal and physical custody.

Sharing custody

In order to share physical custody, parents create a parenting time schedule. The parenting time schedule determines when each parent will have the children in their care.

There is a common misunderstanding that the mothers in most situations will receive sole custody of the children and fathers will see their children on the weekends. This understanding is not based in law and more based on what people understood occurred years ago.

Presumptions for custody under Minnesota law

Under Minnesota law, judges need to assume that both mothers and fathers are equally capable of providing the love, care and support that the children need. To rebut this presumption, a parent needs to demonstrate substantial reasons while a parent is not capable of providing and caring for their children.

In addition to that presumption, it is also presumed that joint legal custody is in the best interests of the children. This is a rebuttable presumption and a parent may be able to demonstrate why joint legal custody is not in the best interest of children. One reason being that there has been a finding of domestic abuse between the parents.

Based on these presumptions, it is clear that mothers do not automatically receive sole custody of the children. The law recognizes the importance of having both parents equally involved in their children’s lives and in many situations parents receive joint legal custody after a divorce.

While the presumptions are for joint legal custody of children, the court still does need to determine what is in the best interests of the children after analyzing 12 factors. These are very fact-specific determinations that are based on the unique family dynamics of each marriage. As such custody determinations can be both complicated and emotional determinations. Experienced attorneys understand how to determine the best interests of children and may be able to guide one through the process.