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.
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).)
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.
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.
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.
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:
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.
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).)
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:
Also, when you're requesting a custody modification like changing the child's primary residence, you must first show that:
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:
(Minn. Stat. § 518.18 (2023); Woolsey v. Woolsey, 975 N.W.2d 503 (Minn. Sup. Ct. 2022).)
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.