Helping families make good decisions during difficult times

Child Custody

Custody Defined

 

Tuft & Lach, PLLC is experienced in representing clients in all types of custody disputes.

  1. Physical Custody: the parent with control over the routine daily care of the child and who has the residence of the child.
  2. Legal Custody: the right to determine the child’s upbringing, including education, health care and religious training.

How is custody determined?

 

In Minnesota, the court determines child custody based upon the best interests of the children. In determining whether custody should be awarded to one parent (sole custody) or shared by both parents (joint custody), Minnesota law provides thirteen “best interest” factors for the court to consider. The thirteen factors are:

  1. The wishes of the child's parent or parents as to custody;
  2. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
  3. The child’s primary caretaker;
  4. The intimacy of the relationship between each parent and the child;
  5. 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;
  6. The child’s adjustment to home, school and community;
  7. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity;
  8. The permanence, as a family unit, of the existing or proposed custodial home;
  9. The mental and physical health of all individuals involved; except that a disability, as defined in section 363.01, 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;
  10. 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;
  11. The child’s cultural background;
  12. 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; and
  13. 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.

Though the “primary caretaker” factor has historically been the most important factor, the court is not permitted to consider that factor or any other to the exclusion of the other twelve factors. In addition to the thirteen factors, the court is to consider evidence of false allegations of child abuse in determining the best interests of the child. The court is explicitly directed not to consider conduct of a proposed custodian that does not affect the custodian’s relationship to the child.

 

When either parent is seeking joint physical custody, the court must consider the factors listed above in addition to the following:

  1. The ability of parents to cooperate in the rearing of their children;
  2. Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;
  3. Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and
  4. Whether domestic abuse, as defined in section 518B.01, has occurred between the parents.

Legal custody concerns the right to participate in the child’s upbringing, including education, health care, and religious training. There is a presumption that legal custody will be joint unless there has been domestic abuse. If the court awards joint legal custody over the objection of either parent, the court is required to make specific findings on each factor and explain how the factors led to the court’s determination that joint legal custody would be in the best interests of the child.

 

Regardless of the final custody determination, each parent has the right of (1) access to, and to receive copies of, school, medical, dental, religious training, and other important records and information about the minor children; (2) access to information regarding health or dental insurance available to the minor children; (3) the right to be informed by school officials about the children's welfare, educational progress and status, and to attend school and parent-teacher conferences. However, the school is not required to hold a separate conference for each parent. The court may waive these rights only if it makes specific findings.

 

What is a Parenting Plan?

 

As an alternative to using custody labels to allocate parental rights, in 2001, the Legislature created an alternative of using “Parenting Plans” to resolve custody disputes. The “Parenting Plan” legislation allows parents to craft an arrangement for parenting time and decisions.

 

Parenting plans are required to include only three things:

  1. schedule of the time each parent spends with the child;
  2. designation of decision-making responsibilities regarding the child; and
  3. method of dispute resolution.

A parenting plan allows parents to creatively address their children’s issues and customize a plan that serves the unique needs of their family. If both parents agree to use a parenting plan, but cannot agree on all of the terms, the court may create a parenting plan. To assist in making its decision, the court may require both parents to submit a proposed parenting plan, order an evaluation, or appoint a guardian ad litem.

 

The parenting plan must nevertheless include a designation of custody. This is because there are provisions of federal law that require such a designation. In addition, in the event that one or both parents move to a different state, the laws of that state may come into play. The custody designation may be helpful in allowing other states to interpret the parenting arrangements.

 

Can a custody order be modified?

 

After a custody or a parenting plan determination has been made, it is difficult to modify. In general, a motion to modify custody may not be brought until a year has passed since the initial custody determination. If there has been a motion to change custody, the parents must wait two years before filing another motion to modify custody, whether or not the change in custody was granted. This is to prevent frequent and harassing filings for custody. Neither of the above restrictions on filing motions applies if the court finds that “there is persistent and willful denial or interference with visitation, or has reason to believe that the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.”

 

If a proper motion is filed, the court may modify the custody arrangement if it finds that a change has occurred in the circumstances of the parties or the child, and that modification of custody is necessary to serve the best interests of the child and that:

  1. Both parties agree to the modification;
  2. The child has been integrated into the family of the noncustodial parent with the consent of the other parent; or
  3. The child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.





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