The issue of child custody in Minnesota is often one of the most difficult and painful that parties need to go through in a divorce. This page will try to answer some common questions that we are often asked regarding child custody.

What is child custody?

In Minnesota, there are two types of custody; legal custody and physical custody.

Legal custody is “the right to determine the child’s upbringing, including education, health care, and religious training.” In most cases the parents are awarded joint legal custody, which means that “both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.” If either party asks for joint legal custody, then it is presumed that joint legal custody is appropriate, and joint legal custody will be granted unless the other party is able to prove that joint legal custody would not be in the child’s best interests. This does not apply if the court finds that domestic abuse has occurred between the parties.

The court considers several factors in deciding if joint legal custody should occur including the ability of the parties to cooperate in the rearing of the children, their methods of resolving disputes regarding major decisions in the life of the child, whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing and whether domestic abuse has occurred between the parties.

Physical custody is defined as “the routine daily care and control and the residence of the child.” In other words, who has the children most of the time. Joint physical custody is unusual and in most cases one parent is given sole physical custody. When one parent is given sole physical custody of the children, the other parent is given parenting time in an amount agreed upon by the parties or as determined by the court.

How is it decided who gets custody of the children?

If the parties can agree on custody issues, the court will generally agree. If the parties can’t agree on custody, the court will look at the standard of the “best interests of the child”. In determining what the best interest of the child is the court looks at a number of factors.

(1) the wishes of the child’s parent or parents as to custody;

(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express 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; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;

(10) the capacity and disposition of the parties to give the child love, affection, 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 that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

(13) except in cases in which a finding of domestic abuse, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

How do we change child custody in Minnesota once it is established?

A Court will not change physical custody from one parent to the other unless the change is in the best interests of the child. In addition, the court will not change custody unless:
1) both parties agree to the change; OR

2) the child has been integrated into the family of the non-custodial parent with the consent of the custodial parent; OR

3) the child’s present environment with the custodial parent endangers the child’s physical or emotional health or impairs the child’s emotional development, and the benefits of a change of custody outweigh the harm.

If the first two situations don’t exist, it is difficult, although not impossible, to change custody of the children once established.