How do I get custody of my children?

How do I get Custody of my children in Minnesota?

In all custody situations, the parents/parties can agree to custody and parenting time.  If the parties can’t agree, the court must decide custody and parenting time based on “the best interests of the child.”

For background information and to learn the basics on what child custody means in Minnesota, check out the Minnesota Child Custody page.

How do I get custody of my kids in Minnesota

General Minnesota Custody Rules

  • In all of the situations below, if the parties can’t agree, the judge must rule based on the child’s best interests.  The twelve best interest factors can be found under Minnesota Statutes §518.17.
  • After reviewing the statute, you’ll also need to review previous court cases in Minnesota to know what the courts look at for each factor and how they tend to evaluate particular circumstances.
  • If you don’t have a lawyer, you can visit your local law library to review cases to see how the court has ruled regarding these 12 factors.

Common Minnesota Custody Situations

Here are three common situations in which custody disputes arise and how to go about getting custody in each situation:

Situation 1: A married couple is getting divorced and they have minor children together.

* In this scenario, custody and parenting time arrangements will be laid out in the divorce decree. As stated above, this can be negotiated by the parties and ultimately agreed to, or it can be ordered by a judge if the parties can’t agree.

custody of my children

Situation 2: An unmarried couple has a minor child and the child has no established legal father.

* In this situation, the father must start a paternity proceeding to: 

1) establish that he is the legal father and to

2 ) establish his custody rights. 

The father can do this all in one court proceeding.

Once again, the parties may come to an agreement, otherwise the judge must consult “the best interests of the child” to make a custody and parenting time decision.

Situation 3: An unmarried couple has a minor child. The child has an established legal father, but the father has no custody rights.

* This is the case when an unmarried father has a child and has already signed a Recognition of Parentage (ROP) or has been established as the legal father through genetic testing.

How Do I get Custody of My Children (2)

(Note: A signed Recognition of Parentage or genetic testing will establish him as the legal father, but neither will give him any custody or parenting time rights.)

This third situation commonly arises in two types of cases:

  • In the first case, a dispute arises when the unmarried couple is now split up and the mother, who has all custody rights under Minnesota law, is denying or otherwise restricting access to the legal father.
  • In the second case, the mother is receiving public benefits on behalf of the child. The county she is receiving benefits through inserts itself into a court proceeding to establish a legal father. The county does this so they can get the father’s child support obligation started. The county then receives reimbursement for the public benefits paid to the mother from the father.However, the county has no interest in establishing custody and parenting time rights for the father. The county’s only obligation is to establish paternity so the father may be pursued for child support.

How Do I get Custody of My Children (1)

* In either of these two cases, the father must establish his custody rights in court. This custody proceeding can also influence the father’s future child support obligation. If the parties can’t agree to custody and parenting time, the court again will look to “the best interests of the child” to make the final decision. 

So, How Do I Get Custody of my Children?

As you can see, “How do I get custody of my children?” is a very fact-intensive question and will depend on your particular circumstances.

However, there are some key things to remember:

1. Custody outcomes vary case by case.

2. Family court judges have a lot of discretion in these cases.  

3. Parents need to argue to “the best interests of the child” (the 12 factors discussed previously). 

4. Parents need to provide many facts to support their custody proposal.

5. Custody may be awarded based on an agreement of the parties or, if the parties can’t agree, custody will have to be decided by a judge.

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