Child Custody FAQs


There are really two aspects to custody of minor children under Minnesota law. “Legal custody” means the right to make the major decisions concerning the child or children’s welfare. These include; schooling, religious, and non-emergency medical decisions (such as elective surgery or orthodontia). “Physical Custody” means the actual day-to-day care and the physical residence of the child, or children, and is addressed by the court in terms of an access schedule that is either agreed to by the parties or ordered by the court. In Minnesota, the term “visitation”, has fallen into disfavor, and judges, referees and lawyers now address these issues in terms of “parental access”, “parenting time” or a “parenting schedule”.

Under Minnesota law it is a presumed to be in the child or children’s best interest for the parents to share joint legal custody. Courts will usually grant joint legal custody unless there is a showing made that the parties do not, or just cannot effectively cooperate and communicate to work together and address major issues concerning the children. If there has been a history of domestic abuse, or especially if there is an existing Order for Protection, the court is more likely to award one parent sole legal custody.

In the past, most parents who separated or divorced would agree to joint legal custody, with one parent having the child’s primary physical residence, subject to the other parent’s visitation or parenting time which often consisted of alternating weekends and holidays, one evening per week, plus extended periods of time throughout the year. However, arrangements to share in the children’s care jointly, referred to as “joint physical custody” or “joint physical residence”, may be an option and are frequently ordered by the court, where both parents have been directly involved in the child’s care, and where it is in the child’s best interests.

Joint physical custody does not have to mean an exactly equal division or sharing of time with the child. Arrangements for joint physical custody are as varied and different, and as creative as people can imagine. For example, some parents will agree on one parent being the “school-year-custodian” with the other parent being the “summer-months-custodian”. Other parents will share near equally in the children’s care such that on Mondays and Tuesdays the child is with one parent, and on Wednesdays and Thursdays the child is with the other parent, with the parents then alternating Friday through Monday morning to school. Older children may live with the parents in alternating weekly periods. However, for joint physical custody arrangements to work effectively, the parents need to be able to work together and effectively communicate to address issues concerning their children, and to truly put the children’s interests first. It is also greatly helpful if the parents reside in relative close proximity, preferably within the same school district.

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If parents cannot agree on a custody and parental access schedule they believe is best for their child, a complete stranger, that is, a family court judge or referee, will make the decision for them. Frequently, neither parent will end up completely satisfied with what the judge or referee orders. Also, the court’s perception of what is in the children’s “best interests”, may or may not take into consideration all of the factors and considerations that the parents would. As a stranger viewing the situation from the outside, the court is simply not in a position to have all the knowledge that the parents do concerning their children’s needs and desires. For this reason, it is usually far better for the parents to agree to a parenting schedule that allows both parents to have access with children which allows them both to be a meaningful part of their children’s lives.

The “Best Interests” factors which judges are required to consider, are set forth in Minn. Stat. § 518.17, Subd. 1, and are as follows:

(1) a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;

(2) any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

(3) the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

(4) whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;

(5) any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;

(6) the history and nature of each parent’s participation in providing care for the child;

(7) the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;

(8) the effect on the child’s well-being and development of changes to home, school, and community;

(9) the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;

(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;

(11) except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

(12) the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

The above “Best Interests” factors which judges are required to consider in deciding contested custody matters, are set forth in Minn. Stat. § 518.17, Subd. 1,

Also under Minnesota law there is no “magic” age at which a child’s preference controls where the child will reside. It is one of many factors that the court is required to consider. However, the older the child, the more weight is given to any such preference. For very young children, the court will not give much, if any weight to an expressed preference as to custody. Also, the court will look with extreme displeasure at parents who have tried to influence a child’s decision about which parent they want to live with.

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If the parties cannot agree on the issue of custody, or a parenting time schedule on their own, the family court judge or referee may end up making the decision for them. However, except where there has been a history of domestic abuse or violence, the court will first usually order the parties to participate in some form of alternate dispute resolution. Most commonly, the parties will participate in a Social Early Neutral Evaluation (with a male and a female evaluator team) who act as neutral third parties to evaluate the parties’ respective positions, and make recommendations based upon their experience and the likelihood of what the court would do. In most cases, a Social Early Neutral Evaluation results in some type of a negotiated settlement.

In other cases the court may order the parties and their attorneys to mediate with a Rule 114 certified family law mediator. If an agreement still cannot be reached, the court may seek input from a third person such as a family court custody evaluator. However, in today’s budget environment, most custody evaluations are private professional evaluations paid for by the parties themselves. The high cost of such studies provide the parents with an additional incentive to reach an agreement on their own.


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