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:
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 sole physical custody of a child. This was usually the mother. However, this has changed. More and more, both parents are being awarded joint physical custody of their children. 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.
NOTE: 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.
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 child custody labels.
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 major decisions regarding your child’s religious upbringing, education, and major medical care decisions. School enrollment is the most common legal custody dispute.
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.
When Parents Don’t or Can’t Agree
In Minnesota, the separating couple or divorcing parents may agree on custody of their child. 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. Especially when both parents are already upset due to this and other issues in their divorce or separation.
Divorcing couples are encouraged to attend a type of ADR, Alternative Dispute Resolution with a neutral, third party and their attorneys. This can be a Social Early Neutral Evaluation (SENE). Another alternative is mediation. 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 evaluator, provides his or her expectation if the parties were to go to trial. This often helps promote settlement.
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.
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. S/he 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 uses. Then, this evaluator shares his/her suggestions. S/he may also provide a written report to the judge regarding his/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. If not, then the issue may be brought to trial, where a judge would be tasked with deciding custody.
The Judge’s Responsibility with Child Custody
Judges, like custody evaluators, use the best interests of the child standard to make custody decisions in Minnesota. To ensure the judge makes a decision that in the child’s best interests, 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, 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.
Parental Misconduct & Best Interests
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).
Besides the custody evaluation report (if you have a custody evaluation done), previous court cases 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.”
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.
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.