Minnesota Child Custody Laws

If you're a parent facing divorce, or you were never married to your child's other parent, you'll have to deal with the question of which parent the child will primarily live with, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how Minnesota law deals with these issues.

What's the Difference Between "Physical Custody" and "Legal Custody" in Minnesota?

Minnesota child custody laws define physical custody as the routine daily care and control of a child. Examples of care and control include bathing, disciplining, or preparing meals for a child.

Legal custody, on the other hand, is the ability to make significant decisions for a child. For example, parents with legal custody can help decide where a child should go to school, whether they should get a flu shot, or what church they should attend. If one of the parents requests joint legal custody, judges in Minnesota must start out by assuming that would be best for the child, except in cases where there's been domestic abuse. (Minn. Stat. § 518.17, subd. 1(b)(9) (2023).)

What is "Joint Physical Custody"?

In the law, "joint" means "shared." It does not necessarily mean equal. (Minn. Stat. § 518.17, subd. 1(b)(8) (2023).) In Minnesota, two parents can share joint physical custody of their children, and it does not mean that the children have to spend an equal amount of time in each home. The only requirement is that the children live in each home for a scheduled period of time.

Joint physical custody could mean spending every other weekend with one parent, or, living 50% of the time with each parent, or anything in between. Parents can also share joint legal custody if the court believes that both parents will cooperate when it comes to matters involving the child.

How to Get Physical Custody of Your Child

The first thing to do is to explore your options. Parents are often able to work through their differences informally, without resorting to the courts. In Minnesota, there are many excellent family law mediators and collaborative law specialists who can help you resolve disputes about physical custody.

However, if you can't resolve your differences informally, you'll need to go to court. There are two ways to seek custody of your child in Minnesota's courts.

• if you're married, you can file a summons and petition (which will initiate divorce proceedings) for a divorce or legal separation, and ask for physical custody in the petition, or
• if you're already divorced or legally separated, or if you were never married, but you established paternity of your child, you can file a petition or motion for custody in the county where your child is a permanent resident or in the county where a court has entered an earlier custody order.

In either case, you will have to give written notice of your petition or motion to the other parent, so that both parents have an equal opportunity to explain their respective positions and talk to the judge if there's a hearing.

How Do Minnesota Courts Decide Child Custody?

When Minnesota judges are deciding what parenting arrangements would be in a child's best interests, they must consider all of the relevant circumstances, including:

• the benefit for the child of maximizing the amount of time with both parents
• both parents' willingness and ability to cooperate in parenting and avoid exposing the child to conflict
• the child's physical, emotional, cultural, spiritual, and other needs, and how the proposed parenting arrangements would meet those needs
• each parent's history of caring for the child
• each parent's ability and willingness to care for the child in the future, consistently follow up with parenting time, and meet the child's ongoing needs
• the effect of proposed parenting arrangements on the child's continuing relationships with both parents, siblings, and other people who are important to the child
• how any changes to the child's home, school, and community will affect the child's well-being and development
• the child's reasonable custody preference, if the judge believes the child is mature enough to express an independent and reliable opinion on the subject
• any history of domestic abuse in the family or household, including the implications of that abuse on the child's well-being, as well as any false charges of child abuse
• each parent's willingness to encourage the child's ongoing relationship with the other parent (except in cases of domestic abuse)
• whether the child has any special needs (including medical, developmental, educational, and mental health needs) that may require particular parenting arrangements
• whether either parent has physical, mental, or substance abuse issues that affect the child's safety or needs (although custody may not be based on disability alone).

Judges may not rely on one of these factors and ignore the rest. They also may not consider conduct that doesn't affect a parent's relationship with the child. (Minn. Stat. § 518.17 (2023).)

The custody order will state whether physical custody is sole or joint. If one parent receives sole physical custody, the order will include a detailed "parenting time" (visitation) schedule for the other parent. If both parents receive joint physical custody, the order will clearly state where the child will live, how long the child will stay in each place, and how the parents will handle transportation responsibilities.

Can You Still See Child If Your Ex Gets Custody?

In most cases, yes. Whenever a parent requests it, the judge must grant parenting time that will allow an ongoing parent-child relationship in the best interests of the child. However, if the judge finds spending time with a parent would endanger the child's physical or emotional health or development, the judge may either deny visitation or set restrictions on parenting time, such as supervised visitation. (Minn. Stat. § 518.175, subd. 1(a) (2023).)

If you and the other parent can agree on a parenting time schedule, the judge will generally adopt your agreement as long as it appears to be in the child's best interests. If you can't reach an agreement, however, the judge will create a parenting schedule for you. Minnesota law presumes that the noncustodial parent is entitled to at least 25% of the overall parenting time, unless evidence shows that wouldn't be best for the child. (unless the judge believes it's not in the child's best interest.) (Minn. Stat. § 518.175, subd. 1(g) (2023).)

How Can You Modify Child Custody Order in Minnesota?

In today's world, it's common for both the parents and children's schedules to change. Although most of these changes won't impact custody or parenting time, you may request a change to your current parenting arrangement if it no longer meets your family's needs. But because courts favor stability for children, the law sets strict limits on modification requests.

First of all, a judge generally won't modify custody or parenting time until at least one year has passed since the initial custody order was issued (usually as part of the divorce decree or until at least two years after a hearing on a previous modification request. But a judge may waive these time limitations if:

• a parent has persistently and willfully denied or interfered with the other parent's time with the child, or
• the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.

Also, when you're requesting a custody modification like changing the child's primary residence, you must first show that:

• there has been a significant change in circumstances since the time of the previous custody order, and
• the modification is necessary to serve the child's best interests.

Once you've met those threshold requirements, the judge will hold a hearing and consider the evidence before deciding whether to order a modification. Generally, the judge won't change a child's physical custody unless:

• the judge finds that the modification would be in the child's best interests, and the parents had an earlier court-approved agreement that custody could be modified based solely on that criteria (as discussed above)
• the parents agree to the current modification
• with the other parent's consent, the child has been integrated into the home of the parent requesting the change
• the child's present environment is dangerous for the child's physical or emotional health, and any likely harm resulting from a change in environment is outweighed by the benefit, or
• the judge previously denied the custodial parent's request to move with the child to another state, but that parent moved anyway.

(Minn. Stat. § 518.18 (2023); Woolsey v. Woolsey, 975 N.W.2d 503 (Minn. Sup. Ct. 2022).)

Getting Help With a Child Custody Modification

You can find useful resources and more information on the Minnesota Judicial Branch page on child custody and parenting time.

But you should know unless you can reach an agreement with your child's other parent on changing the current custody arrangement, you will probably need the help of an experienced family law attorney to navigate the complexities of requesting and winning a custody modification.