But the significance is not, as appellant suggests, whether appellant is a custodial parent, but whether respondent is a custodial parent. The statute only provides for a cause of action against non-custodial parents. By the terms of the parties agreements and its embodiment in the court s order, both parties are custodial parents. Appellant suggests that he has sole custody because the child resides with him full-time. But while it was agreed that the child could set his own visitation schedule, the child was never given authority to determine physical custody and this case rests upon a determination of who has authority to grant physical custody.
Physical custody is defined as the routine daily care and control and the residence of the child.
According to the parties agreements and the court s order, both parents share joint physical custody. Appellant appears to have de facto physical custody because the child resides with him all of the time, but it is the court s order and not the fact of physical custody that is ultimately determinative. Minnesota law does not grant a child or a parent the ability to determine physical custody unilaterally. In fact, Section 518.003, subd. 3 clearly intends the opposite.