frequently asked questions - custody
Minnesota policy encourages parents to share in the rights and responsibilities of rearing their children after a legal separation or divorce (dissolution). It is also state policy to ensure that children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children. Courts take these policies into account when they are deciding custody issues. Decisions regarding custody of, and parenting time with, a child are collectively called a “parenting plan.”
What are custody options?There are two common types of custody: legal custody, and physical custody. Of these, both can be further refined as either Joint or Sole Custody.
What is the difference between Legal and Physical custody?
Legal custody is the right of a parent to have a say in a child’s upbringing, which includes education, health care, and religious training. Minnesota has a statutory presumption in favor of joint legal child custody. Physical custody means that the routine daily care and control and the residence of the child.
What is the difference between Joint and Sole Legal custody?
Joint legal custody in Minnesota 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.
Joint legal custody does not mean that a child lives with each parent 50 percent of the time. In fact, there may be joint legal custody where a child lives primarily (or even exclusively) with one parent. Joint legal custody also does not eliminate a parent’s duty to support a child.
Sole legal custody in Minnesota means that the custodial parent makes all major decisions regarding the child. These major decisions may include the child’s religious and educational training, health care and where the child will live.
What is Sole Physical custody?
Sole Physical custody refers, generally, to where the minor children will live. In short, it identifies who will have primary day to day care and direction of the children.
Back to TopHow is the decision made to determine custody?
The court’s primary consideration in awarding custody is “the best interests of the child.” In deciding custody and determining the best interests of the child, the court will consider 13 factors, some of which are:
- •The wishes of the child’s parent or parents as to custody;
- •The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
- •The child’s primary caretaker;
- •The intimacy of the relationship between each parent and the child;
- •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;
- •The child’s adjustment to home, school, and community;
- •The permanence, as a family unit, of the existing or proposed custodial home;
- •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;
- •The child’s cultural background
The court cannot give custody to a parent only because the parent is the mother or father of the child. Typically, courts are reluctant to separate siblings. There is a presumption (which can be rebutted) that it is not in the best interest of a child to award custody of a child to a parent who has committed abuse.
The court may consider a child’s preference as to where he or she wants to live, but a court does not have to follow the child’s wishes. This is true no matter the age of the child, although the wishes of older children (i.e., teenagers) clearly have more weight than those of younger children. In deciding custody, a judge often relies on the testimony of expert witnesses. Expert witnesses may be people such as psychologists, social workers, teachers, counselors or psychiatrists. The judge also considers the testimony of the parties and other witnesses knowledgeable about the child or the parties.
Until there is an order of the court, both parents have the same rights to be with and make decisions for their minor children. Temporary custody can be given to one parent in cases when a child is in immediate danger. While a divorce case is pending, parents can also apply for a temporary order that maintains the current situation and prevents either parent from removing the children from their current situation. Also, while a case is pending, either party can ask the court for temporary custody or parenting time.
Back to TopWhat is Parenting Time?
When custody is established, a court usually also decides the amount of parenting time (visitation) for the non-custodial parent if sole custody is ordered. Like custody, parenting time is also based on the “best interests of the child.” There are many variations to a parenting time schedule. Common parenting time schedules include every other Friday to Sunday, Friday to Monday morning, midweek evening visits, extra time in the summer and during holidays, etc. There are many variations, and parents are encouraged to work out a plan that makes sense for them and their children. The court may order parenting time to be supervised in situations where there has been abuse, drug activity or neglect.
Back to TopWhat is Supervised Parenting time?
“Supervised” means that a designated third party, often a family friend, relative, or social worker must be present when a parent visits with the child. The court may also require that parenting time occur in a supervised parenting time center. Only in extreme circumstances, where there is clear danger to the child, will a court deny a parent parenting time completely.
Either the parents or the court will determine a parenting plan that spells out the minimum amount of time each parent will have with a child. In many counties in Minnesota, before a court will make a decision regarding custody or parenting time, the court requires the parents to try to work out a plan with a neutral third party called a mediator. Then, if the parents cannot agree, the court will decide issues of custody and parenting time.
Back to TopCan custody be modified?
A court order for custody may be changed later if it can be shown that there has been a substantial change of circumstances since the prior order, and that a different custody arrangment would be in the best interests of the child. Courts will not hear a motion for custody modification unless both parties agree or until at least one year has passed since the initial order was entered, or two years from the date of a motion to modify custody has been heard.
Back to TopCan parenting time be modified?
Yes, similar to a change in custody, parenting time can be modified upon the showing that the change is in the best interests of the child. A motion for change in parenting time does not have the same time constraints as custody modification.
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