Section DMR.02.08 — Custody And Physical Placement

(a) In rendering a judgment of divorce the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties, as provided in this section.

(b)(1) Subject to subsection (2), based on the best interest of the child and after considering the factors under subsection (e), the court may give joint legal custody or sole legal custody of a minor child.

(2) The court may give joint legal custody only if it finds that doing so is in the child's best interest and that either of the following applies:

(A) Both parties agree to joint legal custody;

(B) The parties do not agree to joint legal custody, but one party requests joint legal custody and the court specifically finds all of the following:

(i) Both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child;

(ii) No conditions exist at that time which would substantially interfere with the exercise of joint legal custody;

(iii) The parties will be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse of the child or evidence of inter-spousal battery creates a rebuttable presumption that the parties will not be able to cooperate. This presumption may be rebutted by clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate in the future decision making required.

(c)(1) Except as provided under subsection (2), if the court orders sole or joint legal custody under subsection (b), the court shall allocate periods of physical placement between the parties in accordance with this section. In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors listed in subsection (d).

(2) A child is entitled to periods of physical placement with both parents unless, after a hearing, the court finds that physical placement with a parent would endanger the child's physical, mental or emotional health.

(3) No court may deny periods of physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child or the former spouse.

(d) In determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one potential custodian over the other on the basis of the sex or race of the custodian. The court shall consider reports of appropriate professionals if admitted into evidence when legal custody or physical placement is contested. The court shall consider the following factors in making its determination:

(1) The wishes of the child's parent or parents;

(2) The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional;

(3) The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest;

(4) The child's adjustment to the home, school, religion and community;

(5) The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household;

(6) The availability of public or private child care services;

(7) Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party;

(8) Whether there is evidence that a party engaged in abuse of the child;

(9) Whether there is evidence of inter-spousal battery;

(10) Whether either party has or had a significant problem with alcohol or drug abuse.

(11) Such other factors as the court may in each individual case determine to be relevant.

(e)(1) If legal custody or physical placement is contested, the court shall state in writing why its findings relating to legal custody or physical placement are in the best interest of the child.

(2) The court may give one party sole power to make specified decisions, while both parties retain equal rights and responsibilities for other decisions.

(3) In making an order of joint legal custody and periods of physical placement, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purpose of determining eligibility for aid under any financial assistance program or for any other purpose the court considers appropriate.

(4) No party awarded joint legal custody may take any action inconsistent with any applicable physical placement order, unless the court expressly authorizes that action.

(5) In an order for physical placement, the court shall specify the right of each party to the physical control of the child in sufficient detail to enable a party deprived of that control to implement any law providing relief for interference with custody or parental rights.