Child Custody in Minnesota
Child custody is a significant family law issue in several divorce and paternity cases. For parents who are divorcing or couples who are separating, child custody is often one of the biggest concerns, and unfortunately, the least understood in Minnesota. No thanks, to all the legal jargon and labels that get thrown around. But it doesn’t have to be that way.
Continue reading to learn about the difference between legal and physical custody, particularly, what trips some parents up when it comes to custody, and how it gets decided in Minnesota.
Child Custody Terminology
Minnesota law recognizes two separate parts to child custody. There is physical custody of a child, and there is legal custody of a child.
- Physical Custody:
Refers to the right to determine where the child lives and daily, routine decisions. Physical custody is what most people think of when they hear the word ‘custody’. Physical custody involves daily care, such as sheltering, feeding, and clothing the child.
- Legal Custody:
Refers to the right to make major decisions regarding the child’s religious upbringing, where and how the child is educated, and medical care decisions for the child.
For example, in Minnesota, both parents could have legal and physical custody of the child. Or one parent could have physical and legal custody of the child, while the other parent only has legal custody of the child.
This leads into the other two words you may hear people use a lot when they’re talking about custody: Sole and Joint.
The labels ‘Sole’ and ‘Joint‘ apply to both Legal Custody and Physical Custody. When it comes to child custody, think of joint- as both and sole – as one parent having all the rights. In addition, make sure you always clarify if you’re talking about legal or physical custody when you use the words: sole and joint.
- Joint Physical Child Custody:
Refers to both, hence ‘joint’, parents living with the child and having the right to make daily, routine decisions, such as what the child will eat and wear for the day.
Historically, there was a preference to award only one parent (and thus, sole) physical custody of a child. However, this appears to be changing. More and more, both parents are being awarded physical custody of the child.
NOTE: Joint physical custody doesn’t necessarily mean that one parent has the child for 50% of the time, while the other parent has the child for the other 50% of the time. This is where it can get more confusing. In Minnesota, how much time you spend with the child depends on what is known as, Parenting Time.
To illustrate, you could have joint physical custody with the other parent, but only see the child every other weekend (because you only have 25% parenting time). In other words, the amount of time you have with your child is separate from your child custody arrangement.
Read Parenting Time in Minnesota to learn how much you’ll see your child after the divorce or separation.
- Joint Legal Child Custody:
Refers to both parents having the right to make decisions about the child’s upbringing (such as, the child’s religious upbringing, where and how the child is educated, and medical care decisions for the child).
In Minnesota, it’s presumed to be in the child’s best interests to have both parents involved in decisions regarding the child’s upbringing. Therefore, in the absence of domestic violence, joint legal custody is frequently awarded to Minnesota parents. (Meaning, both parents will have legal custody rights of the child.)
So now that you have a better understanding of child custody and the labels used, let’s take a look at how child custody decisions are made in Minnesota.
What Happens When Parents Can’t Agree on Child Custody
In Minnesota, the separating couple or divorcing parents decide custody of their child, unless they are unable to agree on a decision. If the parents are unable to agree on child custody, typically at least one individual, if not both, end up retaining a family law attorney. This is because child custody cases can be incredibly difficult to navigate in the legal system, especially when both parents are already upset due to other issues in the divorce or separation.
Often at this point in time, the separating or divorcing couple will be encouraged to attend a type of ADR, Alternative Dispute Resolution with a neutral, third party and their attorneys, called a SENE, Social Early Neutral Evaluation. Typically, the parents and their attorneys meet at the third party’s office and discuss their child custody concerns, in hopes of resolving the issue. During this meeting, the third party, known as the evaluator, can provide his/her expectation if the parties were to go to trial, and other helpful recommendations.
Check out this article on Early Neutral Evaluations in Minnesota to learn more about the option, the costs, and how it could help you avoid going to trial.
If the parents are not able to reach an agreement at the SENE, then one parent, or the judge may request the services of a custody evaluator or a guardian ad litem. A custody evaluator or guardian ad litem thoroughly reviews the family’s background during a custody evaluation to determine what’s best for the child. Then, the neutral evaluator can share his/her suggestions, and if desired, provide a written report to the judge regarding their custody recommendation and why.
Read Custody Evaluations in Minnesota for more information about costs, who is involved and what happens during a custody evaluation.
Because most judges hold the custody evaluator’s opinion in high regards, sometimes the parties are able to reach an agreement at this point. If not, then the issue may be brought to trial, where a judge would be tasked with deciding custody.
The Judge’s Responsibility in a Child Custody Case
Like custody evaluators and guardian ad litems, judges use the best interests of the child standard to make custody decisions in Minnesota. To ensure that the judge makes a custody decision that’s in the best interests of the child, Minnesota law requires him/her to consider 12 factors. We’ve summarized those 12 factors in the graphic below for you, but you can also find them listed under Minnesota Statutes, section 518.17.
* NOTE: Regarding the 12th factor, a parents’ disagreement regarding sole or joint custody alone, would not be enough ‘proof’ for the court to declare that the parents aren’t capable of cooperatively raising the child.
The judge weighs these 12 factors on a case-by-case basis. S/he is required by law to take into consideration each of the 12 factors, and disregard any conduct of a party that doesn’t affect the party’s relationship with the child. For example, just having a disability, could not be the reason a parent would lose all custody rights of a child. The same holds true if a parent had an extra-marital affair, for example. However, in Minnesota, evidence of a party falsely and intentionally reporting child abuse in attempts to influence a custody order is considered when making a judicial decision. In fact, you can be charged with a misdemeanor in Minnesota, if you’re found guilty of doing so. (Minnesota Statutes, section 609.507).
Besides the custody evaluation report (if you have a custody evaluation done), previous court cases also guide the court’s decision regarding how to interpret the 12 factors, along with evidence presented at the trial. In addition, there are also certain things that the court has to consider when applying the 12 ‘best interests’ factors to your case. For example, “The court shall consider that it is in the best interests of the child to promote the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents.” Although, there is not supposed to be a presumption either for or against joint physical custody in the courts, unless domestic abuse has occurred between the parents.
Lastly, the judge must explain how each of the 12 factors were considered, involved, and eventually lead, to the final custody decision – that the judge then makes into a custody order regarding the child.