Custody & Parental Access

Child Custody

Legal Custody.

Legal custody means the right of a parent to make major decisions concerning the child’s upbringing, including; healthcare, education, and religious training. In Minnesota it is presumed to be in a child’s “best interests” for the parents to share joint legal custody. This means that the court will order them to be equally involved in and to jointly share in making major decisions which affect the health, welfare and safety of their minor children. Where a court has awarded joint legal custody, both parents have equal rights and responsibilities, and they are legally obligated to consult with and involve the other parent before making major parenting decisions.

However, in certain circumstances (for example where there has been domestic abuse or violence), or where the parents clearly lack the ability to communicate and cooperate with one another in a civil manner over concerns relating to the minor children, the court may award one parent sole legal custody.

Physical Custody.

Physical custody is just what it implies, that is, the day-to-day physical care and residence of the child or children. As to physical custody, there is no presumption under current Minnesota law as to what type of schedule for physical custody or parenting time is in the best interests of minor children. Therefor it is up to the parents themselves to come up with the day-to-day parenting schedule or parenting time arrangement which will serve the needs of their minor children.

Traditionally, where one parent has been the parent to provide for a majority of the child’s care, or where the other parent has been an un-involved parent, the involved parent would be awarded sole physical custody, subject to reasonable parental access or parenting time (formerly called “visitation”), in the other parent. Reasonable parenting time often would consist of alternating weekends (i.e. from Friday afternoon through Sunday evening or perhaps Monday morning), and one evening a week, and an alternating holiday schedule.

However, where both parents have been actively involved in the direct care of their children, it is not uncommon for parents to agree on shared or joint physical custody. Joint physical custody schedules can vary greatly depending on the child’s age and needs, and the work schedules of the parents. Some involve nearly equal parenting time, while others vary depending on the school year or other factors and considerations.

Additionally, changes in the way child support is determined have made the labels of “sole” or “joint” custody significantly less important. The intent of the legislature is to have custody issues resolved based upon what is truly best for the children, and to then examine child support by looking at the amount of time each parent is responsible for the care of the children.

Where parents are unable to agree on custody or on a parenting time,they are required by Minnesota law to attend a minimum of eight hours in a co-parenting orientation and education program. See

Where there is not an agreement by the parents as to custody or parenting time issues, the decision will be left to the sole discretion of a complete stranger, i.e. a family court judge or referee, who will determine the custody and parenting time arrangements based on what the court perceives to be in the “best interests” of the children. Some times this will in the child having a custody arrangement or schedule that neither parent really likes. When the decision is left to the court, both parents will lose a lot of control over their children.

Should the decision be left to the court, the following so-called “best interest” factors are required to be considered by the court:

  • The child or children’s physical, emotional, cultural and other needs and the effect of the proposed arrangements on the child’s needs and development.
  • Any special medical, mental health, or educational needs that the child may have that require special parenting arrangements or access to recommended services.
  • The reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent and reliable preference. (DO NOT ASK OR TRY TO COACH YOUR CHILDREN!).
  • Whether domestic abuse, as defined in MSA Sec. 518B.01 has occurred.
  • Any physical, mental, or chemical health issue of a parent that affects the child’s safety or development.
  • The history and nature of each parent’s participation in providing care for the child.
  • 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.
  • The effect on the child’s well-being and development of changes to home, school, and community.
  • 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.
  • 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.
  • Except in cases where 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
  • 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 “Best Interests” factors which judges are required to consider in deciding contested custody matters, are set forth in Minn. Stat. § 518.17, Subd. 1,

Although it is supposed to be only one factor, sometimes it seems that judges will more closely examine the history and nature of each parent’s participation in providing care for the child’s care. Specifically, which parent has assumed the major role in providing for the child’s direct care (formerly referred to as the “primary parent” factor), and give more weight to that factor in deciding custody issues. For this reason, it may be extremely important for the court to know, which parent has been more involved in the planning and preparing of meals, helping provide basic hygiene, arranging for and making trips for doctors or dentist appointments, 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 child or 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.