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Custody and Visitation in Minnesota
Custody, Class Action Law Suits, Shared Parenting


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"Custody" is an emotionally laden term. To parties in a divorce, it often takes on the unintended meanings. Many parents believe that if they are not awarded custody, that they have somehow been determined to be an inferior parent. That is not the case. Custody determinations are necessary to provide stability for children in the way they are raised. It also helps to provide a home base and security which are important considerations for children of all ages, and even more so for the very young. Custody determinations in Minnesota are based on what is in the "best interests" of the children.

There are two types of custody, "legal" and "physical" custody.

Legal custody is the decision making process regarding important life choices for minor children. Parents exercise legal custody when they decide issues such as religion, medical care and schooling.

Under Minnesota law, there is a presumption that both parents should share in this decision making process. As a result, most parents share legal custody. However, in situations, where the parents are unable to communicate (ie. where domestic abuse has occurred) or where they have a manifest difference of opinion regarding legal custody issues, it may be awarded to one parent.

It is important to remember, however, that because parents differ on one issue, does not mean they cannot share legal custody with regard to other issues. For example, if mom is Jewish and wishes to raise the children in the Jewish faith, whereas dad is Catholic and has a desire to raise the children catholic, the court may determine that mom will be able to make decisions with regard to religion but allow the parents to share responsibility for any other legal custody issues.

Physical custody refers to the primary residence of the minor children. In other words, it determines where the minor children will reside.

Under Minnesota Statutes §518.175, absent other evidence to the contrary, there is a rebuttable presumption that a parent is entitled to receive at least 25 percent of the parenting time for the child. The percentage of parenting time (which is also used as part of child support calculations)  may be determined by calculating the number of overnights that a child spends with a parent or by using a method other than overnights if the parent has significant time periods on separate days when the child is in the parent's physical custody but does not stay overnight. The court may also consider the age of the child in determining whether a child is with a parent for a significant period of time.

If parents are unable to agree on who shall have physical custody, the court is forced to make a difficult determination weighing a number of factors set out in Minnesota Statutes under Chapter 518 in addition to any other facts that are deemed relevant to the issue.

The statutory factors the court will address include:

  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 preference most Courts do not consider the child to be of suitable age until the age of twelve or more. The exception to this rule is Tennessee which gives a presumption to a child's desires if the child is over the age of 14;

  3. The child's primary caretaker (who cooked the meals, took the child to the doctor, bathed the child, attended school functions and extra-curricular activities, helped with homework, provided discipline);

  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;

  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 that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

  13. The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

The court generally may not use one factor to the exclusion of all others. Many people, attorneys included, tend to place a significant emphasis on which parent was the primary caretaker. However, this factor is only one of of many and may not be used as a presumption in determining the best interests of the child.

Importance of Physical custody Label.  The label of "sole physical custody" or "primary physical custody" or "primary physical residence" once had great significance in Minnesota. The label determined which parent paid and which parent received child support. 

However, since Minnesota enacted new child support laws that consider the incomes of both parents and the percentage of parenting time, the label is no longer so important.

Under Minnesota Statutes 518A.36, a parenting time adjustment is made to child support obligations as follows:

  1. If the payer parent has the child in their care less than ten percent f the time, there is no adjustment;
  2. If the payer parent has the child in their care 10 percent to 45 percent of the time, there is a 12% downward adjustment to the obligation;
  3. If the payer parent has the child in their care 45.1 percent of the time or more, it is presumed parenting time is equal and the child support guidelines will calculate an offset of obligations based on income of each parent resulting in a reduced obligation.

The child support calculator can be found online at http://childsupportcalculator.dhs.state.mn.us/

Proposed Changes in the Law and Federal Class Action Lawsuits on Custody.

Changes in the law as it relates to custody are occurring slowly. In the past legislative sessions from 2005 forward - bills have been introduced which would create a presumption that the parents should share physical custody. To date, those laws have not been passed. With a presumption for shared physical custody, litigation is likely to be significantly reduced regarding that issue.

A number of federal lawsuits have been filed as class actions in order to seek a change in the laws of most states to include a presumption for joint physical custody.  The premise of the law suits is that parenting is a fundamental right protected by our constitution.  As a result, if a state intends to infringe upon such a right, it must demonstrate that it has a compelling state interest and that the least intrusive means was used to implement address the states compelling interest.

Unfortunately, the lawsuits that have been filed were drafted by non-attorneys and are poorly crafted to accomplish their designated goal.

Visitation and Parenting Schedules. Visitation and parenting schedules are also crafted by the Court taking into consideration what is in the children's best interests. Court's will most often defer to parental agreements regarding visitation. However, when parents are unable to agree, courts will provide a schedule that takes into consideration weekly arrangements during the school year, holiday visitation schedules, and extended or summer visitation. In scheduling parenting responsibilities, it is generally accepted that younger children require more frequent contact with both parents for a shorter period of time. As children mature, it is often more stable to have them living in one home throughout the school week to provide greater familiarity and comfort.

Joint Physical Custody.

In addition to the statutory factors listed above related to custody, where either joint legal or joint physical custody is contemplated or sought, the court shall consider the following relevant factors:

(a) the ability of parents to cooperate in the rearing of their children;

(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;

(c) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and

(d) whether domestic abuse, as defined in section 518B.01, has occurred between the parents.

The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse has occurred between the parents.

If the court awards joint legal or physical custody over the objection of a party, the court shall make detailed findings in its order addressing the factors above.

Allegations of Abuse.  Allegations of sexual or physical abuse are taken very seriously. Seeking a restraining order as part of a divorce proceeding has become a common occurrence and is sometimes an abused process designed to gain advantage in a custody proceeding or to acquire an early court date to have one party removed from the home. A finding of domestic abuse, whether it involves the minor children or not, may have a dramatic impact on the divorce proceedings. There is a very strong presumption under most state laws that physical custody should not be awarded to a domestic abuser. That means, a person who has been the subject of an Order for Protection (restraining order) or convicted of domestic assault may be unable to acquire physical custody. For this reason, allegations of domestic abuse must be vigorously defended in order to preserve your rights in a custody battle. This can be a vexsome issue since Courts regularly elect to err on the side of caution granting restraining orders in cases where the allegations and evidence are very weak. Do not fall into this trap. Avoid all conflict if possible! Assume any thing you say or do is being recorded! Maintain your best behavior! This can be very difficult in the emotional context of divorce. However, when you consider that most divorce cases are driven forward by emotional issues rather than legal ones, this becomes an absolute necessity to preserve your rights, facilitate settlement and reduce legal fees.

False Allegations of Abuse. False allegations of sexual or physical abuse are also taken very seriously. Most states have statutes that allow the court to consider false allegations of abuse in making custody determinations. Moreover, false allegations of sexual or physical abuse to gain advantage in a custody proceeding may also result in criminal charges.

Preference of Children. Many people incorrectly believe that the children have an absolute right to choose where they will live. That is not the case. Generally, a child may express a preference when that child has reached a suitable age and maturity level. Even if the child is able to express a preference, most courts do not place much weight on a child’s preference before the age of twelve.  Even at that age and older, the child’s preference is only one factor out of many for determining custody.

Children as Witnesses. Many parents wish to know if their children can be called as witnesses. Although opinions on this topic may vary, most psychologists agree that placing a child in the role of a witness can be very traumatic and is usually not in their best interests. Children present testimony in only rare cases.

Minnesota statutes §518.166 provides that a Judge may interview the child in chambers to ascertain the child's reasonable preference as to custodian, if the court deems the child to be of sufficient age to express preference. The court must permit counsel to be present at the interview but, perhaps not the parents.  The Judge must also permit counsel to propound reasonable questions to the child either directly or through the court.  In any such interview, a record of the interview must be made unless specifically waived by the parties.

More often. however, the court will seek the recommendations of professional personnel related to custody an the child's preference. The professional is most often a Guardian Ad Litem, a child psychologist or a custody evaluator.  The professional's  recommendations must be given in writing and made available to counsel upon request. This allows the attorneys (or pro se parties) to prepare for cross-examination of professional personnel at any evidentiary hearing.

Call (612) 240.8005.






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