The Minnesota Courts state that there are two types of child custody under Minnesota law: physical and legal.
Legal custody is the right to make significant decisions regarding the child’s education, health care, and religion. Physical custody is the right to make decisions regarding the day-to-day activities of the child(ren) and where the child(ren) resides.
Custody and parenting time issues are decided in many situations, including:
- When married parents are filing for divorce or legal separation;
- When unmarried parents who have signed a Recognition of Parentage file a custody case;
- In court actions to determine the paternity of a child;
- In domestic abuse Order for Protection cases;
- When a child lives with and is cared for by a third party, such as a grandparent or legal guardian; and
- When a child is involved in a “child in need of protection or services” (CHIPS) case or a juvenile delinquency case.
How Will a Judge Decide on Custody in Minnesota?
There are various factors for determining child custody issues in Minnesota. The judge will decide custody based on what they believe is in your child’s best interest. The judge will examine any factor that they believe is important to make this decision, including, but not limited to:
- The 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, developmental disability, 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 judge believes that the child has the sufficient ability, age, and maturity to express an “independent, reliable preference;”
- If domestic abuse has occurred in either parent’s household or relationship;
- The nature and context of the domestic abuse;
- The implications of domestic abuse on the abuser’s parenting abilities; and the child’s safety, well-being, and developmental needs;
- Ang physical, mental, or chemical health issue of a parent that impacts 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; meet the child’s ongoing developmental, emotional, spiritual, and cultural needs;
- Maintaining consistency and following through with parenting time;
- Cooperating in raising their child;
- Maximizing the sharing of information and minimizing the exposure of the child to parental conflict;
- Utilizing the methods for resolving disputes regarding any major decision concerning the life of the child;
- The effect of changes to the child’s home, school, and community on the child’s well-being and development;
- The effect of the proposed arrangements on the ongoing relationships between the child and each parent, sibling, and other significant people in the child’s life; and
- The benefit to the child in maximizing parenting time with both parents and the harm to the child in limiting parenting time with either parent;
Can a Parent Who Committed Domestic Abuse Receive Custody?
According to the Women’s Law Organization, if one parent has committed domestic abuse against the other parent, there is a “rebuttable presumption” against the abusive parent receiving any joint custody. This implies that the judge will assume that joint legal and joint physical custody is not in the child’s best interest.
However, the abusive parent can still present evidence to prove why they should receive joint custody. In deciding whether or not the abusive parent has presented enough evidence to change the judge’s mind about joint custody, the judge will consider all of the following:
- The nature and context of the domestic abuse;
- How the domestic abuse affects the abusive parent’s parenting abilities; and
- How domestic abuse impacts the child’s safety, well-being, and developmental needs.
How are Custody and Parenting Time Set?
According to the Minnesota Legal Services Coalition, in cases where the parents were not married when the child was born, the mother is presumed to have sole legal and physical custody until a court decides otherwise. If there is a paternity hearing, the court decides custody, child support, and parenting time based on the child’s best interests, the same as it would in a divorce.
Furthermore, the father has no right to custody or parenting time unless he attends court for them. This applies even if he signed a “Right of Paternity” (ROP). The parents can agree to a custody and parenting time plan without attending court, but their agreement is not legally binding unless the court signs off on it.
Moreover, if there is an ROP and no paternity hearing, the father must bring a motion in court to obtain custody and parenting time. If the parents do not agree on custody and parenting time, the court decides what is best for the child. But, if there is an ROP, and the parents have a domestic abuse hearing, the court may grant the father temporary parenting time in an Order for Protection (OFP).
If the parents get married and later divorce or seek m legal separation, the court decides custody and parenting time in the divorce or legal separation case.
How is Custody Evaluated?
The CustodyXChange discusses how custody is evaluated in Minnesota. For Instance, the judge typically orders a full custody evaluation. Evaluations are common in Hennepin County. The evaluation can take up to several months and commonly costs between $5,000 and $15,000. Parents generally split the cost. The judge considers each parent’s ability to pay. You may be able to choose the evaluator together.
Furthermore, during the evaluation, you have mediation sessions so each parent can communicate their history of being a parent. The evaluator interviews your child — at home or another location like school — and about a dozen other people in their life, such as family members and teachers. The judge can utilize information from the evaluation to make their decisions. Because the evaluators are experienced in counseling or social work, judges consider their recommendations.
If you believe you are headed for a custody evaluation, you may request the judge to order it early in your case. Early completion may prompt you to settle and thus shorten your legal process. Most parents, though, first try to settle through Mediation or Alternative Dispute Resolution (ADR).
You can attend a pretrial hearing with the other parent, your lawyers, and the judge. Sometimes this is referred to as a prehearing conference. Either way, it ensures that both parents are prepared for trial. Several things can occur at a pretrial hearing. The custody evaluator may discuss the results of your evaluation.
If you have not completed the required ADR, the judge mandated you to do so before trial. If you have tried ADR and the judge believes there is a chance you could settle, they assist you at the hearing or order a moderated settlement conference (MSC).
When Do I Need to Contact a Lawyer?
If you live in Minnesota and have child custody issues, you can reach out to a Minnesota child custody attorney in your area to guide you through your case. Your family lawyer can guide you through the process and provide representation for your particular legal matters and issues.