Minnesota Child Custody Lawyers & Attorneys
When child custody issues arise, courts can determine two types of custody of minor children: physical custody and legal custody. In some situations, both parents can share physical custody and/or legal custody. Otherwise, one parent might assume sole physical custody and/or sole legal custody.
- Legal Custody vs. Physical Custody
- Minnesota Third Party Custody
- Custody Evaluation
- Child Protective Services
- Guardians Ad Litem
- Parenting Time & Visitation Rights
- Legal Separation
- Legal Guardianship
- Moving a Child Out of State
When do child custody issues arise?
Child custody may be awarded through a custody proceeding, during filings for divorce or legal separation, in paternity or domestic abuse actions, or when the child lives with a third party such as a grandparent or legal guardian. Also, if a child is involved in a civil order for protection, such as a “child in need of protective services” (CHIPS) case or a juvenile delinquency case, the court might need to make a determination of child custody.
What rights and obligations are involved with the different types of child custody?
Physical Custody: means that a parent has the right to make decisions about where the child lives and about the routine day-to-day activities of the child.
Sole physical custody: means that the child lives primarily with one parent that has sole physical custody, though the noncustodial parent almost always has a right to “parenting time,” also known as “visitation,” with the child. Prior to 2007, custody labels were very important when the courts calculated child support. Now, the labels have little significance. Instead, the percentage of time the child spends with each parent plays a direct role in the calculation of child support.
Legal Custody: means the parent has the right and obligation to make decisions about the major issues regarding a child’s upbringing, such as the child’s education, health care, and religious training.
Joint legal custody: means that both parents share the responsibility for making decisions regarding how to raise the child and must agree to such decisions. In Minnesota, the courts have a presumption to award joint legal custody if it is requested by either parent. However, joint legal custody will not be awarded in cases where communication between the parties is difficult or impossible, including cases with domestic violence.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, they may bring you back to court and ask the judge to enforce the custody agreement. You won’t get fined or go to jail, but it will probably be embarrassing and cause more friction between you and the other parent, which in turn may cause harm to your children. In extreme cases, you may even lose custody of your child.
Sole legal custody: might be awarded to one parent rather than the other if there is a demonstrated inability of the parents to cooperate or if a history of domestic abuse or violence is shown.
Best Interest Factors
Under Minnesota law, the court looks at 13 factors to determine the child’s “best interests” in granting both legal custody and physical custody. This determination only occurs if the parents themselves cannot reach an agreement about the custody of the child. In 95% of child custody cases, the parents reach an agreement and thus do not need to go to court to have a judge decide the child’s custody.
If a case does go to court, the judge might find that it is in the best interests of the child to award sole physical custody to one parent rather than the other parent. There is no one factor to decide which parent should be awarded sole custody. Instead, the judge’s determination of the child’s “best interests” is based on an examination of the following 13 factors:
- The wishes of the child’s parent or parents as to custody
- The child’s preference, if the court deems the child to be of sufficient age to express preference (wishes of a child under 8 years old are usually not considered)
- The child’s primary caretaker (the parent who has been responsible for clothing, feeding, bathing, and making sure the child’s day-to-day needs are met)
- The intimacy of the relationship between each parent and the child (if there has been a separation, the court will look at the quality of bonding between the noncustodial parent and the child during that time)
- 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 (for example, the court will look at the child’s relationship with the parents’ live-in boyfriend or girlfriend, if any)
- The child’s adjustment to home, school, and community
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity (in other words, who the child has lived with and whether the child has been left alone, and if so, for how long)
- The permanence, as a family unit, of the existing or proposed custodial home
- The mental and physical health of all individuals involved (though a disability, as of a proposed custodian or the child will not be the deciding factor)
- The ability and willingness of each party to give the child love, affection, and guidance and to continue educating and raising the child in the child’s cultural heritage
- The child’s cultural background
- The effect on the child of any domestic abuse that has occurred between the parents or between a parent and another individual
- The willingness of each parent to encourage and permit frequent and continuing contact by the other parent with the child (though if any domestic violence has occurred, the judge will disregard this factor)
Contact Our Minnesota Child Custody Lawyers
If you have questions about how the court may determine custody in your case, or would like to modify a current custody order, contact the attorneys at Heimerl & Lammers today for a free consultation.