Minnesota Child Custody in Divorce: The Basics

“Child custody” is the area of law that governs where a child lives and how he or she divides time between both parents after a divorce or in another similar separation.

Important concepts

Certain legal terms have traditionally described the different aspects of this ongoing arrangement. According to Minnesota family law statutes, the main child custody concepts are:

• Legal custody: A parent with legal custody has the “right to determine the child’s upbringing, including education, health care and religious training.”
• Physical custody and residence: A parent with physical custody provides “routine daily care and control” as well as the child’s residence.
• Joint custody: Physical custody or legal custody can be jointly held by the parents together; joint legal custody means sharing responsibility for important decision making; joint physical custody means dividing daily supervision and living arrangements.
• Sole custody: Either physical custody or legal custody can be held by one parent alone.
• Temporary custody: A temporary child custody arrangement applies during the pendency of a divorce.
• Final custody: The permanent, ongoing custody arrangement after the divorce is called final custody.
• Parenting time: Traditionally called visitation, parenting time is the time each parent has separately with the child.

Marital settlement agreements

Parents often negotiate a settlement agreement (through mediation, collaborative law or traditional negotiation) in which they set out custody and parenting time arrangements. The advantage of agreeing to these terms is that if the couple can’t, the judge must decide these issues for them. While most negotiations require some compromise by each party, at least there is some control and input. If the judge makes these decisions for the parents, neither may be happy with the results.

Parenting plans

Similar to a traditional settlement agreement, Minnesota also allows the use of a “parenting plan” that lays out the division of time and decision-making responsibilities between the parents, how the ex-spouses will resolve their differences and any related matters the parents want to include. Minnesota law does not require a parenting plan to use the traditional terminology defined in the bulleted list above, but if the parties decide to use their own language to describe their family arrangements, the alternate wording must be clearly defined by the agreement.

Court trial

If the parties can’t agree, the Minnesota state court must decide what custody arrangements would be in the “best interest” of the child. Minnesota law requires the judge to carefully evaluate in the written custody order “all relevant factors,” including specifically:

• The parents’ preferences
• The child’s “reasonable preference” if he or she is “of sufficient age”
• The child’s primary caretaker
• The “intimacy of the relationship” between the child and each parent
• The child’s “interaction and interrelationship” with each parent, siblings and other people who “significantly affect the child’s best interests”
• The child’s “adjustment to home, school and community”
• The importance of continuity of the previous living environment and how long it has continued
• The permanence of the present or future residence
• The “mental and physical health” of everyone involved
• The ability of each parent to love and guide the child, and to train the child in his or her culture and religion
• The child’s “cultural background”
• The impact on the child of domestic abuse between the parents or between one parent and another individual
• Unless domestic abuse has been found, the ability of each party to “encourage and permit” contact with the other parent

The Minnesota statute that lays out these best-interest factors also has some other important provisions. First, the judge must consider all the factors and not make his or her custody decision based only on one of them. Second, custody may not be based only on parental gender. Third, if one of the parents has falsely accused the other of child abuse to try to influence the judge’s decision, the behavior of the accusing parent can be a misdemeanor and is to be considered by the judge in determining the child’s best interests for custody purposes. Fourth, the judge may not look at behavior of a parent that “does not affect the custodian’s relationship to the child.” Fifth, in deciding whether joint custody is in the child’s best interest, the judge must consider additional factors mostly relating to the parties’ ability to cooperate.

This article just scratches the surface of Minnesota child custody law. If you face custody issues concerning your children, speak to an experienced and skilled Minnesota divorce attorney to understand your rights and options.