Child custody is an issue with divorcing parents. Custody may also be an issue for unmarried parents.
Custody Labels: Physical and Legal
Minnesota law uses two child custody labels: Physical Custody and Legal Custody.
- Physical Custody: The right to determine where a child lives and daily, routine care. Physical custody includes sheltering, feeding, and clothing the children. This is what many people think of when they hear the word ‘custody.’
- Legal Custody: The right to make major decisions regarding a child’s religious upbringing, education, and major medical care decisions.
Child Custody Designations: Sole and Joint Custody
In Minnesota, a parent may have both legal and physical custody of his or her child. However, sometimes a parent only has legal custody of his or her child. And in severe cases, a parent may not have physical or legal custody. Minnesota courts use the labels “sole” and “joint” to make these distinctions.
Joint Physical Child Custody
With joint physical custody, both parents live with the child and having the right to make daily, routine decisions, such as what the child will eat and wear for the day. Importantly, both parents share a structured parenting time schedule with the children to manage this routine.
Historically, there was a preference to award only one parent sole physical custody. Usually, this was 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 a parent spends with the child.
For example, both parents could share joint physical custody, but one might only see the child every other weekend. In other words, the amount of time a parent has with a 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 a 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: Step 1, 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, judges encourage parents to attend a type Alternative Dispute Resolution (ADR). Most typically this is a mediation or a social early neutral evaluation (SENE). Lawyers and both parents all participate, along with at least one neutral.
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.
When Parents Don’t Agree, Step 2: Custody Evaluations
If parents can’t reach an agreement through ADR, then they may need a custody evaluator. A custody evaluator is a private 3rd-party typically retained by both parents. If the evaluator is retained by both parents, he or she will usually be neutral.
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 parents 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.
When Parents Don’t Agree, Step 3: Trial
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, a parent can be charged with a misdemeanor in Minnesota, if he or she is 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 certain rules that the court has to consider when applying the 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 change in the law 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 and 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.