Child Custody FAQs

HOW DOES THE COURT DETERMINE CUSTODY ISSUES?

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.

Traditionally, most parents who separate or divorce would agree to joint legal custody,
with one parent having the child’s primary physical residence, subject to the other parent’s
reasonable and liberal parental access. A traditional or typical parental access schedule
would include 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, 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 one week or two week 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. 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. The wishes of the child’s parents as to custody.
  2. The reasonable preference of the children, if the Court deems the children to be of sufficient age to express a preference.
  3. The child’s primary caretaker.
  4. The intimacy of the relationship between each parent and the child.
  5. The interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests.
  6. The child’s adjustment to home, school and community.
  7. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  8. The permanence as a family unit, of the existing or proposed custodial home.
  9. The mental and physical health of all individuals involved.
  10. The capacity and disposition of the parents to give the child love, affections and guidance, and to continue educating and raising the child in the child’s culture and religion or creed if any.
  11.  The child’s cultural background.
  12. The effect on the child of the actions of an abuser, if related to domestic abuse, as defined in Section 518B.01, that has occurred between the parents.
  13.  Except in cases in which a finding of domestic abuse as defined in Section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the children.

Although it is supposed to be only one factor, frequently judges will often look to see
which parent has assumed the major role in providing for the children’s direct care, referred
to as the “primary parent” factor, and weigh that factor more heavily in deciding
custody issues. For example, the court will examine; which parent has been more involved
in the planning and preparing of meals, helping provide basic hygiene, arranging for and
making trips to doctors or dentists, attending parent – teacher conferences, helping with
homework, making arrangements for and transporting the children to and from child care,
the purchasing and cleaning of clothing, arranging for social interaction with friends,
being active in and/or attending the children’s extra-curricular activities, and just
spending time with, and being with the children.

Also under Minnesota law there is no “magic” age at which a child’s preference
for the custodial parent controls. It is only 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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HOW IS PARENTAL ACCESS (VISITATION) DECIDED?

If the parties cannot agree on the issue of custody, or to a parental access or parenting
schedule on their own, the family court judge or referee will make the decision for them.
However, except where there has been a history of domestic abuse or violence, the court
will usually order the parties to first try and mediate the custody and access issues with
a professional third party mediator. If an agreement still cannot be reached, the court
frequently will seek input from a third person such as a Court Services Family Court Officer,
or a court-appointed Guardian ad Litem, who will then conduct a custody study or custody and
parental access evaluation. There is usually at least a three-month delay, and a substantial
cost to have such a study or evaluation performed. Additionally the court will usually order
that the parents share in the cost of the study. This provides the parents with an additional
incentive to reach an agreement on their own.

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