What is Child Custody?
Custody is a broad term which looks at how children are raised and who is responsible for raising them.
One note: For ease with this guide, the “child" is always referred to in the singular. However, all of this information applies to situations in which there are more than one child whose custody will be decided.
Two Types of Custody In Minnesota: Legal and Physical
In Minnesota there are two types of custody:
n Legal Custody – This refers to who gets to make major decisions in the life of the child. In Minnesota, there is a presumption that, in the absence of domestic abuse, it is in the best interests of the child to have both parents involved in making these decisions. Typically there are three areas to which legal custody applies:
o Religious upbringing – things like what religion will the child practice and what place of worship will the child attend
o Education – this includes where the child will go to school and what kind of school (like public vs. private)
o Medical care – this includes major medical decisions like selecting between surgeries or other major medical procedures
n Physical Custody – This refers to what most people think about when they think “custody". This refers to the day to day care of the child and includes things like providing food, clothing, and shelter, maintaining proper hygiene, and getting the child ready for school or other organized activities.
n In Minnesota, there is no presumption that favors either sole or joint physical custody, although courts have recently been moving towards more joint arrangements.
Two Custody Designations in Minnesota: Sole and Joint
These custody designations refer to whether one or both parents are primarily responsible for providing that type of care for the child.
Since there either of these designations may apply to both custody types, there are four possible custody outcomes in any Minnesota custody case:
n One parent has sole physical and sole legal custody – these situations tend to arise when the other parent has either abandoned the child or has a significant history which endangers the child (like violence towards the child, chronic drug use, or chronic criminal history)
n One parent has sole physical, but joint legal custody – historically, this has been the most typical outcome, given that there is a preference for joint legal custody by statute and that joint phyiscal custody used to be disfavored by judicial practice
n One parent has sole legal, but joint physical custody – this is an unusual outcome, however may arise in which the other parent has demonstrated a pattern of poor decision making skills regarding big issues for the child, however maintains a good day to day relationship with the child
n Both parents have joint legal and physical custody – the trend in Minnesota is moving towards this arrangement. In many cases it is in the best interests of the child to have active involvement from both parents with making big decisions and with day to day care
How do Courts in Minnesota Decide Custody? The 13 Factors
All custody decions in Minnesota must be based on the best interests of the child.
In order to help Family Court judges and referees determine what’s in a child’s best interests, Minnesota Statutes Section 518.17 lists 13 factors that judges must consider when making any custody decision. You may go directly to the statute here.
The thirteen factors follow, along with brief comments:
What both parents want custody to be – what custody determination do the parents want?
The reasonable preference of the child – the older the child the more their preference is likely to matter, although contrary to popular belief, a child cannot “decide" which parent he or she lives with.
The child’s primary caretaker – refers to who has historically been primarily responsible for the day to day care of the child. This tends to be a powerful factor with a very young child.
The intimacy of the relationship between each parent and the child – tends to refer to which parent the child will go to for comfort, reassurance, and to express life concerns. It also can refer to which parent tends to show more affection to 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 – this factor may cut both ways.
a. It can be used to bolster a custody case if there are other children (from a different parent) who the child is close with or other family members or close friends who provide positive care for the child.
b. On the other hand, if one parent associates with others who are “bad news" and may adversely impact the child’s best interests, it may argue against custody for that parent
The child's adjustment to home, school, and community – basically, how much has the child “settled in" to his or her current environment. This factor tends to be more important when one parent is hoping to move a long distance away with the child.
The length of time the child has lived in a stable, satisfactory evnironment and the desirability of maintainng continuity – this is closely related to factor 6 and in addition looks at the individuals each parent spends time with in the child’s environment.
The permanence, as a family unit, of the existing or proposed custodial home – looks at each parent’s history of moving around and likelihood that each will be able to stay in one place in the future
The mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, 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 – parents are generally presumed fit to raise their children, however this factor allows the court to look at things like mental health diagnoses of the parties as well different addiction issues. It’s important to note that having a mental health issue alone is not sufficient to be “held against" the parent. In addition, the issue must be shown to negatively affect the best interests of the child.
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 – this may look at, in addition to how much love or affection each parent gives and is motivated to give, things like whether one parent has particular and useful skills for the raising of a child or how much one parent promotes the traditional religious upbringing of the child
The child's cultural background – this factor doesn’t crop up often. Occasionally when it does, it may be used to explain why “weird" behavior of someone from another culture is perfectly normal and acceptable in their culture and therefore should not be considered as negative for the child
The effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, 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 – this looks at abuse committed by either parent against the other or against a third party. This is a very complex factor when it arises and many small variations in situations can make large differences in who gets custody.
Except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child – this refers to each parent’s capacity and willingness to “play nice" with each other after a custody proceeding for the benefit of the children.
Custody is a High Risk Situation with Many Complex Rules
Although the statute clearly lists these factors, judicial officers have enormous discretion to decide what’s in the best interests of the child based on the factors. Each situation is decided on a case by case basis.
Although no one factor may be used by itself to determine custody, the factors will not all weigh equally into every case. Again, the judicial officer has significant discretion regarding what factors will be a greater influence.
Judges are guided, although not necessarily bound, but many previous court cases which have decided these issues. Unless you are familiar with them, you will be significantly handicapping yourself when trying to make favorable custody arguments.
In addition, there’s another set of factors (not discussed here) which come into play when one party wants joint custody and the other wants sole.
The big take away message: If the custody of your children is on the line, you’ve got a tough road ahead of you. On top of the already emotoinally exhausting threat of losing rights with your children, you are faced with a litany of special rules, laws, and procedures which need to be followed to best advocate for your rights and for what’s best for your children.
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All of the material available in this guide is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Use of and access to this FAQ does not create an attorney-client relationship between Majeski Law, LLC and the user.