Custody & Parenting Time

Legal Custody

Legal custody means the right of a  parent or parents 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. The court normally grants both  parents the right 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 the court has granted 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.

In certain circumstances however (for  example where there has been domestic abuse or violence, or where the  parents clearly lack the ability to communicate and cooperate  effectively 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 concerns the day-to-day physical care and residence of the child or children. Under  current Minnesota law there is no presumption as to what type of  parenting time or parenting schedule 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. A common parenting schedule is the so-called 5-2-2-5  schedule in which one parent has the children overnight on Monday and  Tuesday evenings, with the other parent having Wednesday and Thursday  evenings, and with the parents alternating Friday through Monday morning  to school.

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,  parents are required by Minnesota law to attend a minimum of eight hours  of co-parenting education. See


When the parents are unable to agree on custody and parenting time  issues, the decision will be left to the sole discretion of a complete  stranger. That is, the Family Court Judge or Referee, who is required to  make a decision based upon what they perceive to be in the “best  interests” of the minor child or children. This can sometimes result in a  custody arrangement or parenting schedule that neither parent really  likes. When the decision is left to the court, both parents lose a  tremendous amount of control over their minor children.

Should the decision be left to the  court, the judicial officer is required to consider and make specific  “findings of fact” regarding the following factors:

(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,

Additionally, it should be noted that under Minnesota law there is no  “magic” age at which a child’s preference for the custodial parent will  control. It is only one of many factors that the court is required to  consider. Generally however, the older the child, the more weight is  given to any such preference or preferences. For very young children,  the court will usually 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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