What is Legal Custody?

In Minnesota there are two components of custody. There is the issue of "legal custody" which means the right to determine a child's upbringing including making decisions relative to education, church and religious issues and training, health care, activities, and other important decisions concerning a child's upbringing. If parents have "joint legal custody" both parents have equal rights and responsibility over these matters and are required to consult with one another in making decisions involving the upbringing of the children from education, day care, health care, social and school activities and religious training. The decision whether to agree and stipulate to joint legal custody or to seek sole legal custody is an important decision that has to be made at the commencement of the process and should only be made after consulting with an experienced family law attorney and understanding Minnesota law on this issue.

What is the Impact of Domestic Abuse?

Under current Minnesota law the Court is directed to use a rebuttable presumption that upon the request of either or both parties joint legal custody is in the best interests of a child or the children. However, a Court shall use a rebuttable presumption that joint legal custody or physical custody is not in the best interest of the child or the children if domestic abuse as defined under Minnesota law has occurred between the parties. The issue of whether domestic abuse has occurred is therefore an important factor in addressing and resolving both legal and physical custody and may impact a Court or the Judge's decision on whether to grant or allow a Stipulated Agreement involving these matters. In evaluating or deciding whether to grant joint legal or joint physical custody a Court and Judge look at the ability of parents to cooperate in raising the children, methods the parents have in place for resolving disputes and any major decisions in the life of the children and the parents willingness and agreement to be involved in those methods, and whether it would be detrimental to a child or the children if one parent were to have sole authority over a child's upbringing and whether domestic abuse has occurred between the parents.

What is Physical Custody and the Best Interests of a Child?

The other component of custody is "physical custody" and residence which means the routine daily care and residence of the child or in other words where the child's primary residence is at. In evaluating and determining the physical custody for the children the Court has to determine the best interests of the children by evaluating thirteen different factors which are presently set forth in Minn. Stat. §518.17 subd. 1. The factors the Court considers are as follows:

• The wishes of each parent.
• The reasonable preference of a child if the Court determines that the child is of sufficient age to express a preference
• Who has been the child's primary caretaker
• The intimacy of the relationship between each parent and the child
• The interaction and the interrelationship with a child with the parent or parents and the siblings and any other person that may materially affect a child's best interests
• A child's adjustment to home, school and community
• The length of time a child has lived in a stable satisfactory environment and the desirability to maintain continuity
• The permanence of a family unit of the existing or proposed custodial home
• The mental and physical health of each parent
• The capacity and disposition of each parent to give the child love, affection and guidance, and the ability to continue to educate and raise the child in the child's culture and religion or creed if any
• The child's cultural background
• 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.
• Except in cases where a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent and the child.

Will I need to have Witnesses and Professionals?

In evaluating and determining the best interests of the children a Court will consider testimony of witnesses at a custody trial, as well as testimony of each parent and other potential experts. It is extremely difficult and not recommended that you attempt to handle a custody dispute without obtaining legal representation.

In the process of a divorce and a custody dispute there are normally other professionals who are involved in the process such as a Custody Evaluator, a psychiatrist or psychologist, a Guardian and often times a Parenting Time Expediter, or a Parenting Consultant. It is important to consult with an experienced family law attorney before meeting and dealing with these other professionals to ensure you understand the process, the important facts and information that needs to be communicated, and decisions involving your own life and the children's lives that are consistent with what a Court would view as being in the best interests of the children.

Will a Domestic Abuse or an Order for Protection Proceeding have an Impact on my Case?

In some cases an Order for Protection or Domestic Abuse Proceeding will commence prior to a divorce action being commenced and it is highly recommended that both parties be represented by legal counsel in an Order for Protection or a Domestic Abuse Proceeding as the outcome of that case can have a significant impact on Custody Issues and Parenting Time issues in a subsequent divorce. A decision whether to litigate an Order for Protection or Domestic Abuse case or to make stipulated findings can be an important factor viewed upon in a subsequent custody dispute and should only be done after a party has had an opportunity to consult with an experienced divorce attorney.

What are the important initial decisions impacting custody?

At the time of a separation a parent or party often times will make a decision whether to move out of the home or where to live and whom to live with and the distance from the home which can have an impact on future custody issues. A temporary schedule that the parties follow prior to the commencement of legal proceedings can also establish a status quo or precedence that the Court may look at in determining the flexibility and continuity of the children and what the parties have presumably implicitly decided is in the best interests of the children in deciding custody and Parenting Time or visitation issues. All of these decisions should only be made after a party has an opportunity to consult with an experienced family law attorney.

How will the parent's cooperation and communication with each other impact my case?

The issue of communication and the ability to cooperate between the parents is an important issue in Court or that a professional will look at in formulating or making recommendations to the Court concerning custody including legal and physical custody and a Parenting Time Schedule. If a parent consistently attempts to alienate or isolate the children from a parent without a justifiable legal reason due to potential danger to a child, that can come back to impact a custody or parenting time ruling or decision in numerous ways. If there are issues relative to abuse, alcohol or chemical dependency or mood altering drug abuse, or there has been a history of mental health issues involving the parent, or a child has special needs it is also especially critical that a party consult with an experienced family law lawyer.

Often times there will be independent professionals retained or assigned or Court ordered to do chemical dependency evaluations, psychological evaluations, or other types of evaluations that can have a significant impact on the issues of custody or Parenting Time. The decision whether to agree to such evaluations or the process of selecting an appropriate evaluator or professional can play a role in how the case is resolved. There are numerous professionals who are deemed to be reputable and an experienced divorce lawyer can assist you in selecting these professionals.

What other Custody Professional such as a Parenting Consultant or Parenting Time Expediter will I need?

In finalizing a divorce there are often times where decisions need to be made whether to appoint or select other professionals to assist in future decisions involving the children and whether to select a Parenting Time Consultant, Parenting Time Expediter, or other professionals and stipulating and agreeing to the scope of their authority can have a significant impact on future issues and expense in a case.

In cases involving disputes about custody it is inevitable that a divorce matter will take a longer period of time because of the need to involve professionals and complete evaluations such as Custody Evaluations by County Court Services or by other psychiatrists, psychologists, or other professionals stipulated to or Court ordered.

Custody is an extremely complex area and it is strongly recommended a party not represent themselves in addressing and resolving custody disputes. Your decision making on all custody matters and methods of communication are issues that should be discussed and evaliuated with an experienced family law lawyer. The selection of other professionals to assist in addressing and resolving or handling future disputes is also an important component of a Custody Proceeding. Even if a custody dispute is subsequently resolved it is important to receive a divorce attorney's input in the decisions that are made in reaching a settlement as the settlement can have a significant binding effect on the resolution of future matters involving the children. There is substantial case law and there have been recent material changes in Minnesota custody laws, in particular, relative to what factors to evaluate and look at in deciding whether to allow a parent to move from Minnesota and relocate the children to another state.

What about Child Support and Paternity?

Minnesota law has also recently changed in regards to child support. A Parenting Time Schedule and a Visitation Schedule can impact the calculation of child support under current Minnesota child support laws. There are also unique laws relative to custody, if custody is an issue in a paternity case, not a divorce case. If a child is born to parents who are not married at the time the child is born there are different laws, in particular, relative to a father or mother's initial rights concerning custody prior to an adjudication of paternity. It is essential that if there are disagreements, or that a custody dispute is imminent, that the party immediately consult with an experienced family law lawyer.

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