Child custody is a central issue in a divorce with children or paternity case. In fact, for parents who are divorcing or separating, custody may be one of the biggest areas of dispute.
Custody Definition: Physical and Legal
Minnesota law recognizes two separate parts to child custody: Physical Custody and Legal Custody.
- Physical Custody:
Refers to the right to determine where your child lives and daily, routine decisions. It involves daily care, such as sheltering, feeding, and clothing your children. In fact, physical custody is what many people think of when they hear the word ‘custody.’
- Legal Custody:
Refers to the right to make major decisions regarding your child’s religious upbringing, education, and major medical care decisions.
Child Custody Labels: Sole and Joint Custody
In Minnesota, usually a parent has both, legal and physical custody of his/her child. However, sometimes a parent only has legal custody of his/her child. And in severe cases, some parents don’t have physical or legal custody. This brings us to the other two words people use when they’re talking about custody: Sole and Joint.
The labels ‘Sole’ and ‘Joint‘ apply to both Legal Custody and Physical Custody. Think of joint- as both and sole – as one parent having all the rights. Clarify if you’re talking about legal or physical custody when you use the words: sole and joint.
Joint Physical Child Custody:
This refers to both 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 sole physical custody of a child. This was usually the mother. However, this has changed. Parents are more frequently awarded joint physical custody of their children. However, this is still determined on a case by case basis.
In addition, there is a presumption that each parent should have at least 25% of the time with their children. This presumption applies in most situations.
Joint physical custody doesn’t necessarily mean that each parent has the child for 50% of the time. This is where it gets confusing. In Minnesota, parenting time refers to how much time you spend with the child.
For example, you could have joint physical custody with the other parent, but only see the child every other weekend. In other words, the amount of time you have with your child is separate from child custody labels.
Read Parenting Time in Minnesota to learn how parenting time works in Minnesota.
Joint Legal Child Custody:
This refers to both parents having the right to make major decisions regarding your child’s religious upbringing, education, and major medical care decisions. School enrollment is the most common legal custody dispute. Medical care is also sometimes a disputed issue.
In Minnesota, unless there has been domestic violence, it’s presumed to be in the child’s best interests to have both parents involved in decisions regarding the child’s upbringing. Therefore parents are frequently awarded joint legal custody in Minnesota.
When Parents Don’t Agree: ADR
Parents may agree on custody of their child. In that event, they may stipulate to this and typically a Judge will sign off.
However, 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. Child custody cases can be incredibly difficult to navigate in the legal system. This can add problems when both parents are already upset due to other issues with each other.
If a case has started, parents are encouraged to attend a type of ADR, Alternative Dispute Resolution with a neutral, third party and their attorneys. Most typically this would be a mediation or what’s called a social early neutral evaluation (SENE).
Typically, parents and their attorneys meet at the neutral’s office and discuss their child custody concerns in hopes of resolving the issue.
During this meeting the neutral may provide his or her assessment as to what would happen if the parties were to go to trial. This often helps promote settlement. If the parents reach a settlement at this point, they may put it in writing. After signing and submitting to the Court, if the Judge signs the agreement, it becomes a binding custody order for the parents.
Custody Evaluations (Best Interests)
If parents can’t reach an agreement through ADR, then the parents may need the services of a custody evaluator. A custody evaluator is a private 3rd-party who is typically retained by both parents.
He or she thoroughly reviews the family’s background during a custody evaluation to determine what’s best for the child. This analysis is based on the 12 best interests factors a Judge would ultimately use.
Then, the evaluator shares his or her suggestions. He or she may also typically provides a written report to the Judge regarding his or her 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 a neutral custody evaluator’s opinion in high regard, often the parties are able to reach an agreement at this point. As with ADR processes, after signing and submitting this agreement the Court, if the Judge signs, it becomes a binding custody order for the parents.
If the case still hasn’t settled, then the parents go to trial. If a custody case reaches trial, a Judge now decides the remaining disputes.
A Judge’s Role with Child Custody: 12 Factors
Judges, like custody evaluators, use the best interests of the child standard to make custody decisions in Minnesota. Minnesota law requires him or her to consider 12 factors. They are listed under Minnesota Statutes, Section 518.17.
Regarding the 12th factor, parents’ disagreement about custody alone is not ‘proof’ that parents aren’t capable of cooperatively raising their child. Judges understand that it’s harder to reach agreements in the middle of a custody dispute.
Best Interests: What the Court Considers
The judge also disregards any party’s conduct or situation that doesn’t affect the child. For example a parent with a disability would not automatically lose custody of his or her 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).
considering the twelve factors
Besides the custody evaluation report, if applicable, previous court cases guide the court’s decision regarding how to interpret the 12 factors, along with other evidence presented at the trial.
In addition, there are also certain things that the court has to consider when applying the factors. This is the section of the statute immediately after the twelve factors.
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.” This is a relatively recent addition which recognizes the importance of both parents in a child’s life.
Lastly, the Judge must explain how each of the 12 factors were considered as well as what facts were used. At that point, the court reaches a final custody decision. This decision becomes a binding order which both parents must follow.
For other divorce or family law questions, please consult the list to the left or the FAQ page. If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.