Minnesota Child Custody

In Minnesota, “physical custody” defines where the children physically reside most the time, and which parent(s) provide their daily care.  There are a few different physical custody arrangements to consider:

• “Sole physical custody” describes a situation where the children live with one parent more than 50% of the time, and that parent has control over the routine daily care of the children. Historically, courts have favored awarding one parent physical custody of the children and awarding the other parent visitation to maintain ongoing contact and a close relationship between the children and both parents.

• “Joint physical custody” is a term used when children spend between 45.1% and 50% of their time with each parent. Both parents share the day-to-day care of the children.  There is no presumption for or against joint physical custody, except in cases involving domestic violence.  However, true joint physical custody arrangements are less common due to their potential to cause both personal and practical difficulties for children.  Unless separating parents can effectively co-parent and communicate with one another, adopt similar parenting styles and daily routines for their children, and live relatively close to one another, joint physical custody arrangements are laden with risk. 

• “Split physical custody” is another, although much less favored, custody option. In split custody cases, one parent has sole physical custody of one or more of the parties’ children, and the other parent has sole physical custody of the other child(ren).  Courts usually prefer not to separate siblings.

“Legal custody” involves the decision-making authority parents have regarding their children’s health, education, welfare, and upbringing.  In most cases, parents agree to, and courts award, joint or shared legal custody.  In fact, there is a rebuttable presumption in Minnesota that, upon request of either or both parties, joint legal custody is best for children.  If legal custody is shared, the Court must set a method of dispute resolution if the parents do not agree.  For example, the Court may order, if the parents do not agree, dad will decide.  Or, it may say, if the parents do not agree, they will work with a third party (i.e. mediator) to resolve the dispute. 

Physical and legal custody of your children will be decided one or two ways: (1) by agreement between parents, or (2) by the Court.  If parents are unable to agree on a parenting plan, and the Court must decide, the Court will evaluate the following factors to determine the best interests of the child:

• A child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;

• Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

• The reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

• Whether domestic abuse, as defined in section 518B.01, has occurred in the parents' or either parent's household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs;

• Any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;

• The history and nature of each parent's participation in providing care for the child;

• The willingness and ability of each parent to provide ongoing care for the child; to meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;

• The effect on the child's well-being and development of changes to home, school, and community;

• The effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;

• The benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;

• Except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child's relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

• The willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

The Court must make detailed findings on each of the factors above based upon the evidence presented and explain how each factor led to its conclusion and to the determination of custody.  The Court may not use one factor to the exclusion of all others.

If custody of your children may be an issue, keep the following things in mind:

1. Don’t sign any papers or negotiate on your own. If your spouse requests that you sign any residential responsibility or parenting time agreements, refrain.  The consequences of signing such papers, before consulting an attorney, may be irreparable and detrimental to your case.  Just as important as not signing any documents, you should not verbally agree to any terms or agreement prior to talking to an experienced family law attorney.
   
   
2. Hire an experienced child custody lawyer. Choosing the right attorney to represent you is an important, and often difficult, decision.  In making the decision, you should look for an attorney who is:
   
   
   • Professional: Your attorney should look and sound professional.  Some red flags may include a lawyer who is inappropriately dressed, is not well-spoken, who keeps a disorganized, sloppy office, or whose office is in an unusual place.
     
     
   • Competent: Divorces often involve important issues such as the residential responsibility of children and complex financial issues.  You should entrust these important considerations to someone who has the knowledge and skills to handle them competently.
     
     
   • Respectful: Your attorney should treat you as an adult who needs help with a problem. He or she should recognize that you are in an emotional situation, and not ridicule or embarrass you because you are in a relationship that has not worked out.
     
     
   • Compatible: Your attorney will be helping you through an unfamiliar and often traumatic period of your life.  Throughout the process, you may need to disclose intimate or even embarrassing information to your attorney.  Your attorney must be someone with whom you are comfortable under these circumstances.
     
     
   • Candid: Throughout your divorce, you may have to make numerous difficult decisions.  It is imperative your attorney is open and honest with you when helping you make these decisions, rather than simply telling you what you want to hear.  While the truth about a given situation may be unpleasant, it is to your benefit to be fully informed.
     
     
3. Don’t procrastinate. If you have been served with a Summons and Complaint stating that an action has been commenced against you, don’t wait until the last minute to find an attorney.  Giving your attorney ample time to make a well thought out response can only help your case.
   
   
4. Don’t move out of the marital residence. In situations where there are children involved and residential responsibility is a concern, do not move out of the marital residence without talking to your attorney first.  If you are in danger and have no choice but to leave, take the children with you.
   
   
5. Journal, journal, journal. Every parent facing the prospect of parenting time litigation should keep a journal.  The outcome of any case will likely turn on a multitude of events.  The details of those events will have been lost unless written down.  Without those details, statements of prior events lose persuasive impact.  General statements such as “he always…” or “she never…” do not sway judges.  As such, you should record such things as abusive events, the use of bad language, whether parenting time has taken place, been missed, or interfered with, whether parenting times have started and ended on time, what a personal has done with the kids during parenting time, what kind of care the other parent is providing, and more.  If your common sense tells you it is important, write it down as it happens.  The details of past events will be your most powerful evidence.
   
   
6. Keep your children out of the divorce. Don’t put your children in the middle of your problems or ask them to take sides.  Don’t use your children as confidants.  Don’t argue in front of your children.  Don’t pump your children for information about the other parent or use your children to carry messages back and forth.  Tell your children you love them and make sure your children know that it is okay to love the other parent.  Reassure your children that they are loved by both parents and they will always be taken care of.
   
   
7. Play nice. Don’t speak negatively about your spouse in front of your children or discourage their communication with the other parent.  Include your spouse in your children’s school activities and special events.  If you are separated from your spouse, allow the children to have reasonable contact with the other parent.  Don’t be mean just to be mean; don’t be petty just to be petty.  Take the higher ground.  Develop a workable and cooperative parenting plan that gives your children access to both of you.  Make every effort to agree with your spouse about discipline.  This will help your child feel more secure.  In the end, your parenting time arrangements will be more bearable and it will be easier for you and the children to move forward.
   
   
8. Avoid exposing your children to your new significant other.

There is no specific age at which a child may decide which parent to live with.  A child’s custody preference is give more respect as the child’s age and maturity increases.  As you’d expect, Courts give more weight to the preference of a child who is seventeen than one who is twelve. Court’s seldom—but may—consider children age ten and under to have a sufficient maturity to express a residential responsibility preference.  A child’s preference will be discounted if it appears “purchased” by a parent’s manipulations.  Minnesota law gives an older teen’s custody preference much more priority and importance than does North Dakota.

Usually, but not always.  The general rule is that a custodial parent may not move from the state where the divorce was granted without the consent of (1) the other parent, or (2) the Court.  In fact, a person moving the children without such consent may face civil contempt findings or criminal prosecution for depriving the other of parental contact.  If the other parent will not consent to the move, you must ask the court for permission. The noncustodial parent has the burden of showing that the move will be against the children’s best interests.  If the court grants permission to move, it will also restructure parenting time rights to accommodate the non-moving parent.

Our office uses “Custody X Change” software.  Among other things, this software allows us to print out, in calendar form, every parenting time scheme imaginable.  Accordingly, we can provide our clients a color-coded calendar for the entire year—or beyond—showing when the children will be with each parent.  The calendar includes start and end times for regular, holiday, and summer parenting times.  Each parent can simply post the calendar on their fridge and both will know exactly when the children should be with them.  The calendar can also be used as a journal to record parenting time events, good or bad, as they occur.  Our fee for providing this service is quite reasonable.

You may want to consider utilizing a safe exchange center for your parenting time exchanges.  Rainbow Bridge Safe Exchange/Visitation Center offers a positive, safe, child friendly, and neutral site where children and parents can be assured that a supervised parenting time or exchange will be safe and conflict free.  Rainbow Bridge is located at 715 North 11^th Street, Suite 101, Moorhead, Minnesota.  There are other safe exchange locations available throughout the state.

No, they don’t. It may be true that moms end up with primary residential responsibility of children more often than dads, but not because of judicial bias in favor of moms, but as a reflection of a society.  Think about it.  How many stay-at-home dads do you know?  How many stay-at-home moms? We still tend to put a more and higher parenting burdens on moms than dads. Court decisions simply reflect…us.

Minnesota’s statutes and case law assure that, as between moms and dads, there is no presumption as to who will be awarded custody.  Our office’s experience through the years verifies this lack of gender bias.  In parenting time disputes, the better parent is awarded residential responsibility, regardless of gender.

Yes, but it’s hard. Grandparents can obtain a Court Order allowing reasonable visitation with grandchildren.  The grandparents have a difficult burden of proof, however.  The grandparents must prove that visitation: (1) will be in the best interests of the children, and (2) will not interfere with the relationship between the children and their parents. 

Biological parents are entitled to custody of their children unless it clearly appears they are unfit, have abandoned their right to custody, or there are some extraordinary circumstances that would require they be deprived of custody.  If any of the above are true, the Court may apply a best-interest-of-the child test when awarding custody to a third party.

The Minnesota Supreme Court has held there is a presumption in custody cases that the natural parent is fit to raise his or her own child, and that the burden of disproving the presumption rest with those who challenge it.  There must be “grave and weighty” reasons to separate a child from their natural parent.  Third party custody claims are very rare and are often unsuccessful.

A request to amend a custody order may not be made within one years of the original custody order, or within two years after a previous modification order unless: (1) the parties agree to the modification; (2) there is persistent and willful denial or interference with parenting time; or (3) the court has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.

The Court may not modify custody, even after the time frames set forth above, unless it finds: (1) upon the basis of facts, that have arisen since the prior order, or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties; and (2) the modification is necessary to serve the best interests of the child. In applying these standards, the court must retain the present custody arrangement or the parenting plan established by the prior order unless:

• The court finds a change in the custody arrangement or primary residence is in the best interests of the child and the parties previously agreed, in a writing approved by a court, to apply only the best interests’ standard;
• Both parties agree to the modification;
• The child is already integrated into the noncustodial parent’s family, by consent of the custodial parent;
• The child's present environment endangers the child's physical or emotional health or impairs the child's emotional development, and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or
• The court has denied a request of the primary custodial parent to move the residence of the child to another state, and the primary custodial parent has relocated to another state despite the court's order.

A parent seeking to change custody has the burden of proving the elements above.

Divorce represents a major upheaval for your entire family, including your children.  You can help your kids through the process by creating a game plan of how and when to discuss your divorce with your children.  In many cases, it is a good idea to reach out to a child therapist for guidance before you discuss your divorce.

Although you and your spouse may be at odds during your divorce, it is critical to your children’s well-being that you present a unified front when you do talk to your children.  Once you’ve decided to discuss your divorce plans with your kids, make sure you’ve picked a neutral time and location for the meeting.  It is best to be honest with your kids, without going into too many unnecessary details.  It is also very important to assure your children that both parents love them, and that love won’t go away.

Your children may take the news hard, or in stride. Your kids may struggle with the fact their lives will never be the same.  You can help your children by fostering their relationship with the other parent.  A parent’s biggest mistake in a divorce is putting the kids in the middle of their own emotional battle.  Keep your kids out of your arguments with your spouse.  No good can come of highlighting the bad qualities of your child’s other parent.