Minnesota Child Custody Questions

Minnesota child custody attorneys provide answers to frequently asked questions with regards to Minnesota child custody and Minnesota custody laws.

Who will get custody of our child(ren)?

There are no set rules on who will automatically get custody of the children. There are statutory factors that the court must consider in awarding any decision regarding minor children.

What is joint custody? What is sole custody?

Legal custody provides one or both divorced or separated parents with the authority to make decisions about a child’s education, health and religion.

If the court orders joint legal custody, both parents are entitled to weigh in on academic, medical and religious issues, and disputes between the parents regarding those issues are resolved in family court, mediation or other alternative dispute resolution.

If the court orders sole legal custody to one parent, the other parent is not stripped of all parental authority, but the child’s major decisions are subject to the authority of the parent with sole legal custody.

Physical custody is the term used to address where a child lives. If the parents have joint physical custody, the child does not reside primarily in one parent’s house, but spends relatively equal time residing with each parent. If one parent has sole physical custody, the child resides primarily with that parent. When one parent has sole physical custody, the other parent may have a great deal of parenting time, or very little (or none), depending on the case.

The term “primary physical custody” is being used increasingly. That term reflects the fact that in most cases, neither parent wants the other parent to have “sole physical custody,” but “joint physical custody” may also be rejected if one or both parents disagrees with the label and/or if the child does not spend nearly equal time in each parent’s home.

If joint physical custody is awarded there are additional factors that need to be addressed such as: the ability of the parents to cooperate in rearing the children; the ability of the parents to resolve disputes regarding the children; whether it would be detrimental to the child if one parent were to have sole authority over the children’s upbringing; and whether domestic abuse has occurred between the parents.

If both parents share custody does anyone pay child support?

Child support is determined based on the gross monthly income of both parties and other expenses such as daycare costs and medical insurance costs. The parenting time of each parent is also a factor.

There are three tiers for parenting time percentages, under 10%, 10% to 45% and 45.1% to 50%. There is a 12% reduction in child support for a parent receiving between 10% and 45% of the parenting time. There is also a more significant reduction for a parent with 45.1% to 50%.

Can a parent refuse to allow visitation if child support is not paid?

No. Child support payment or lack thereof is completely independent of a parent’s right to see his/her child.

When can my child decide which parent to live with?

In Minnesota, there is not set age limit on when a child can decide which parent to live with. The court will consider the child’s wishes to the extent that the child is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.

Do grandparents have custody and visitation rights?

Generally speaking, no. Third parties do not have visitation rights to the minor children unless an independent action to gain those rights is started.

What is a parenting plan, and do I need one?

A parenting plan is the plan that parents submit to the court allocating parenting time with the minor child, holiday visitation, etc. It is a requirement. However it can be as vague or as detailed as you want.

If my separation agreement includes child custody and child support, can it be included in the divorce decree?

Yes, it should always be integrated.

What can I expect from temporary orders?

Temporary orders cannot be brought before the court until the parties attend the required Initial Case Management Conference (ICMC) in their county.

After the ICMC the parties can decide to enter the Early Neutral Evaluations (ENE) program. This program is similar to mediation but broken up into child custody/parenting time ENEs and financial ENEs. This program is voluntary. If you choose to go through the ENE process you cannot bring a temporary motion until all ENEs are finished. If you do not go through the ENE process you can file a temporary motion after the initial ICMC.

Temporary motions can deal with most issues in the dissolution on a temporary basis. The following issues are usually dealt with in a temporary motion: child custody, child support, possession of the homestead, possession of vehicles, payment of debts/bills, and spousal maintenance. This is not an exhaustive list. A temporary order can be in place for a few months or years. They can be modified if necessary.

When will child custody be decided?

Your final parenting time decisions will be determined by the court during the trial. It is possible to have Temporary Orders that allocate parenting time provisions, or the parties can agree to a parenting schedule.

When can I modify custody?

A parenting plan, including a parenting schedule, can be modified at any point whenever such an action would be in the best interest of the minor child. However, a substantial modification of parenting time which changes the children’s primary residence or a change in custody can only be filed if it is shown that the child’s present environment may endanger the child.

What if we cannot agree on a child custody arrangement?

If you cannot mutually agree on a custody arrangement, the court will have to determine a schedule that it deems is in the best interest of the minor child. In some cases, the court will order a custody/parenting time evaluation to be done by a neutral private evaluator.

A custody/parenting time evaluation usually takes between three to six months to complete. The costs can vary between the evaluator chosen. The evaluator will make recommendations to the court. The courts will usually follow the recommendations.

What is an ex parte order?

This is an emergency motion before the court. All regular motions are required to be served on the opposing party 14 days prior to the hearing date. An ex parte motion waives the notice requirements and allows the parties to get into court sooner to discuss issues that absolutely cannot wait for a later hearing date.

A judge can give immediate relief to the party seeking the ex parte motion and a hearing will be held within a short period of time so the other party can provide documents regarding the issues.

How is child custody decided?

If you cannot mutually agree on custody, the court will have to determine the custody arrangement that it deems is in the best interest of the minor child. In some cases, the court will order a custody/parenting time evaluation to be done by a neutral private evaluator.

A custody/parenting time evaluation usually takes between three to six months to complete. The costs can vary between the evaluator chosen. The evaluator will make recommendations to the court. The courts will usually follow the recommendations.

How can I increase my chances at getting a larger custody agreement?

There are many factors that are used to determine custody and parenting time. It is recommended that you stay child focused and constantly ask the question, “Why is this in the best interest of my child?”

What is visitation?

Visitation is parenting time. It is when one parent gets to “visit” with the minor children.

Can a judge order supervised visitation or no visitation?

Yes, if the court finds that supervised or no visitation is necessary because a party is a danger either physically or emotionally to the minor child, it can be ordered.

Do courts favor the mother over the father?

The courts are not allowed to be biased for one parent due to sex.

What should I know before a custody trial?

You should know the best interests factors that will be taken into consideration by the judge and how will you prove those factors in a trial setting.

Can I collect my own evidence to use if my custody case goes to court?

Yes, however you will need to abide by the Rules of Evidence in introducing the proposed evidence.

Do I need to use a Guardian ad Litem or Child Custody Evaluator?

No, but in some cases their services are highly helpful.

Will my child need to appear in court?

Usually no. In fact, it is discouraged to have children involved in court proceedings.

What is the Parental Kidnapping Prevention Act?

Minnesota has a Uniform Child Abduction Prevention Act (UCAPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It was put into place to try and protect the child and parent from the situation where one parent abducts a child unlawfully and refuses to return the child.

What if my wife tries to move the kids out state?

If your wife is the residential parent, she will have to bring a motion before the court requesting permission to move. She will have to show that the move is in the best interests of the child.

Can a parent change the child’s last name without the other parent’s permission?

No minor child’s name may be changed without both parents having notice of the pending application of change of name. The applicant must show proof that the non-applicant parent(s) has received notification of the Application for Name Change of a Minor.

If I have custody, will I receive child support?

Usually, but child support is based on the gross income of both parties and other factors such as daycare and medical insurance expenses.