Child Custody

Custody Defined

The experienced attorneys at Tuft, Lach, Jerabek & O’Connell, PLLC assist clients in all types of custody disputes.

Physical Custody and Residence: the routine daily care and control and the residence of the child.
Legal Custody: the right to determine the child’s upbringing, including education, health care, and religious training.

Custody is either awarded solely to one parent or jointly to both parents. It is important to note that custody labels do not necessarily determine the parenting time schedule, which is where the child will be and when. One parent may have sole physical and sole legal custody but the other parent may still have some parenting time with the child. For more discussion on parenting time and how this is determined, click HERE

How is custody determined?

In Minnesota, there is a rebuttable presumption that upon request of one or both parties, joint legal custody is in the child’s best interest. If there has been domestic abuse between the parents, as defined by Minnesota statutes, then there is a rebuttable presumption that joint legal and joint physical custody is not in the best interests of the child. In determining whether the presumption is rebutted, the court shall consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs.

Other than this rebuttable presumption in favor of sole physical custody where there is domestic abuse between the parents, there is no presumption for or against joint physical custody and joint physical custody does not require an absolute equal division of parenting time. It is more and more common for parents to agree to joint physical custody when they have any type of shared parenting time schedule.

In addition to the above presumptions, in Minnesota, the court will determine 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), the court will analyze the “best interest” factors. The twelve factors are:

A child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
The reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
Whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;
Any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
The history and nature of each parent’s participation in providing care for the child;
The willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
The effect on the child’s well-being and development of changes to home, school, and community;
The effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;
The benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
Except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
The willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.
1. As to this factor, simply because the parents may disagree on whether there should be sole or joint custody, this does not constitute an inability of parents to cooperate in the rearing of their children.

The court is not permitted to consider any one factor to the exclusion of the other eleven factors. So, for example, it used to be fairly common for the courts (and parents) to place a lot of emphasis on who was the historical caretaker of the child (factor #6). However, the court also needs to consider factor #7 which does not look to the past but rather looks to the future in determining each parent’s willingness and ability to provide ongoing care for the child. The court must analyze all twelve factors and will consider that the factors may be interrelated.

In addition to the twelve factors, the court has to consider:

That it is in the best interests of the child to promote the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents;
That both parents have the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child’s needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures;
Evidence that a parent falsely reported child abuse (a violation of section 609.507).

The court cannot consider conduct of either parent that does not affect the parent’s relationship with the child and a parent’s disability (as defined by Minnesota statutes) is not determinative on the issue of custody of the child.

Regardless of the final custody determination, each parent has the following rights:

The right of access to, and to receive copies of, school, medical, dental, religious training, police reports, and other important records and information about the minor children;
The right of access to information regarding health or dental insurance available to the minor children;
The right to be informed by the other party as to the name and address of the school of attendance of the minor children;
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. The school is not required to hold a separate conference for each party, unless attending the same conference would result in violation of a court order prohibiting contact with a party;
The right to be notified by the other party of an accident or serious illness of a minor child, including the name of the health care provider and the place of treatment;
The right to be notified by the other party if the minor child is the victim of an alleged crime, including the name of the investigating law enforcement officer or agency. There is no duty to notify if the party to be notified is the alleged perpetrator; and
The right to reasonable access and telephone or other electronic contact with the minor children.

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 four things:

A schedule of the time each parent spends with the child;
A designation of decision-making responsibilities regarding the child;
method of dispute resolution; and
A designation of custody solely for enforcement of the final judgment and decree where custodial designations are required for enforcement of custody orders (i.e., for out of Minnesota state enforcement purposes).

A parenting plan allows parents to creatively address their children’s issues and customize a plan that serves the unique needs of their family. Talk to the experienced attorneys at Tuft, Lach, Jerabek and O’Connell, about how to draft your parenting plan and about various and common parenting provisions that parents often agree to include in their parenting plans.

As set forth above, the parenting plan does need to 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 (though not impossible) 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 at some point after the initial custody determination, the parents may have to wait two years before filing another motion to modify custody. This is to prevent frequent and harassing filings for custody.

None of these timelines apply if the court finds that there is persistent and willful denial or interference with parenting time, 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 you are seeking a modification of custody, talk to one of our attorneys about whether or not these timelines apply to your case.

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:

Both parties agree to the modification;
The child has been integrated into the family of the noncustodial parent with the consent of the other parent; or
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; or
The court has denied a request of the primary custodial parent to move the residence of the child to another state and the primary custodial parent has relocated to another state despite the court’s order.

For more information, contact Tuft, Lach, Jerabek & O’Connell, PLLC online here or at 651-771-0050 to schedule a consultation with one of our experienced family law attorneys.