Family Law

How do Judges Decide Child Custody in Minnesota

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation, and how Minnesota judges decide custody cases.

Child Custody and Visitation in Minnesota

If you’re a parent and you’re going through a divorce or a breakup, you need to make decisions that protect your kids’ well-being. To do that, you need to understand some fundamental concepts about custody, visitation, and the Minnesota courts.

What Is the Difference Between Legal and Physical Custody?

If parents can’t reach a custody agreement on their own, a judge will have to write a formal custody and visitation order. The Minnesota Legislature made it very easy to understand the different types of custody because it passed legislation defining custody as follows:

  • Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.
  • Joint legal custody means that both parents have equal rights and responsibilities, including the right to participate in major decisions about the child’s life, including education, health care, and religious training.
  • Physical custody and residence means the place where the child lives and receives routine daily care.
  • Joint physical custody means that the child’s routine daily care is structured between both parents.

Awards of sole legal custody are rare and usually happen when one of the parents is abusive or neglectful, making it impossible for the parents to cooperate in child-rearing.

Minnesota law doesn’t favor joint physical custody. Instead, the judge’s baseline at the beginning of the case is that it’s in the child’s best interests to have a safe, stable, nurturing relationship with each parent and that each parent has the capacity to have a healthy relationship with the child. However, the courts do assume that joint legal custody is in a child’s best interests unless there’s a history of domestic violence.

What Is Visitation?

In Minnesota, visitation is formally known as “parenting time.”

Generally speaking, visitation is a court-ordered, scheduled time when a non-custodial parent is able to be with the kids physically (e.g., summer breaks or weekend visits) or, perhaps, call them on the telephone or speak through real-time video call apps like Skype or FaceTime.

Both parents are governed by the visitation schedule the judge imposes, although the parent with sole physical custody can always agree to give the noncustodial parent more visitation time. If that happens, it’s wise to document the situation by asking the court to adjust the old schedule to match the new one.

Unless the parents request something different, the judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, the court will structure its custody and visitation order to make sure the kids are protected. The judge will often order visitation to be supervised by a family member or someone else who can make sure the child is safe. Supervised visitation usually occurs at a neutral place, like a restaurant or park.

It’s rare for the court to suspend visitation completely, and that only happens in cases where visitation would pose an immediate and major threat to the child.

Because the courts emphasize the need for a child to have a relationship with both parents, it’s a colossally bad idea to unilaterally (meaning, by yourself) try to prevent your ex from exercising court-ordered visitation. If you do, you can be subject to sanctions or the court may order “compensatory” visitation to bring your spouse up to speed in your child’s life. Interfering with parenting time can even be a crime in some cases.

That said, if you believe your child would be immediately and physically endangered by visiting with the other parent, contact a family attorney for advice and contact your Clerk of Court or local law library to find out what legal procedures you’ll have to set in motion to protect your child and shield yourself from sanctions. You may be able to ask the court for emergency temporary custody orders.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

The court will always encourage parents to resolve their custody and visitation disputes on their own. In fact, it’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is still a stranger to you and your family. The judge doesn’t know you personally and you might be terribly dissatisfied with the decision. On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life.

Minnesota has mandatory mediation requirements each time a divorce case is filed. Child custody mediation presents a great opportunity to work out the tough issues before you ever have to go to court. It’s also always advisable to consult with an experienced family law attorney, but if you’re self-represented, the Minnesota Judicial Branch maintains a library of information about custody. You can even contact a Self-Help Center in your area.

How Do Judges Decide Custody Issues?

In Minnesota, the final custody order is called a “custody determination” and it includes a ruling and instructions for how the parents have to divide up their custody and parenting time. The most important consideration for Minnesota courts is what’s best for the child, so the judge has to look at all of the following factors:

  • the child’s physical, emotional, cultural, spiritual, and other needs
  • the effect of each parent’s proposed custody and visitation plan on the child’s needs and development
  • whether the child has any special medical, mental health, or educational needs that require special arrangements
  • the child’s wishes, if the child is old enough to form a mature and reasonable opinion
  • whether either parent has perpetrated or been victimized by domestic abuse, and how that abuse has affected the child’s safety and well-being
  • whether a parent has physical, mental, or chemical health issues (meaning, drug or alcohol problems) that affect the child’s safety and development
  • whether and to what extent each parent has provided care for the child
  • each parent’s willingness and ability to provide the child with ongoing care
  • each parent’s ability to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs
  • each parent’s ability to maintain a consistent home life and follow through with court-ordered visitation
  • how the child will be affected if there’s a court order that results in changes to the child’s home, school, and community
  • the effect of each parent’s proposed custody plan on the relationships the child already has with the other parent, siblings, and other important people in the child’s life (e.g., grandparents)
  • the benefit to the child in maximizing the amount of time spent with both parents
  • the harm to the child if parenting time is limited with either parent
  • each parent’s willingness to support the child’s relationship with the other parent and to encourage the child to have frequent and continuing contact with the other parent (note: this does not apply if there’s a history of domestic violence)
  • the willingness and ability of each parent to cooperate in raising the child, sharing vital information about the child’s life with one another
  • the willingness and ability of each parent to resolve their disputes peacefully, either by simply cooperating with one another or seeking out help from other people, like parenting time expeditors (family law attorneys who specialize in visitation problems), and
  • any other relevant facts that help the court to understand what’s in the child’s best interests.

The judge will write a detailed order with findings about each of the factors based on the evidence presented at trial. The court will, in its order, explain how each factor led to the judge’s conclusions and to the allocation of custody and visitation. The judge is specifically prohibited from relying on one factor to the exclusion of others. For example, the court can’t rest a decision on the fact that one parent is a stay-at-home caretaker; instead, the court has to consider all of the best interest factors.

Judges can appoint experts, called “guardians ad litem,” to act as advocates for the children, evaluate each parent’s home and the child’s life, and then make recommendations to the judge about custody and visitation.

When making a final custody determination, the court will not consider evidence that doesn’t affect a parent’s relationship with the child. Also, the judge won’t favor or disfavor any parent because of gender or disability.

Parent Education

If parents disagree about custody or parenting time in Minnesota, and the court has to get involved, the parents are legally required to complete educational courses for at least eight hours. The courses provide parenting education with content that has been specially approved by the Minnesota Supreme Court. The purpose is to help parents understand the impact that their breakup has on their children and to teach parents how to cooperate with one another and support their children during hard times. Each parent must also pay a fee to attend the class. However, the fee can be waived if a parent is indigent.

If you live in Minnesota, and you and the other parent have had to involve the courts in your custody and visitation disputes, be aware that you have to begin participating in the parent education program within 30 days of the date you first filed paperwork with the court. For more information, contact the Clerk of Court in your local courthouse.

Minnesota’s parent education program is important, and you should treat it that way. You can’t get out of the classes unless you can show good cause as to why you can’t attend and get permission from a judge. If you fail to attend, the court can impose sanctions (punishment) against you. That said, if there’s a history of past or present domestic violence in your case, you can explain that to the judge, and you’ll be excused from having to take the classes.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify (or change) the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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