Child Custody

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Looking for a Minnesota child custody attorney?  Let us get you started by answering some of the most frequently asked questions we hear about child custody issues in Minnesota.  If your questions go beyond what is here, email or call us for an initial consult.

What is legal custody?

Child CustodyLegal 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.

What is physical custody?

Child CustodyPhysical 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.

Is joint physical custody preferred in Minnesota?

Joint physical custody is common in Minnesota, but not “preferred”.  In fact, a growing preference in the Minnesota courts is to avoid a “label” for physical custody, so that the parenting arrangement is called neither “sole physical custody” nor “joint physical custody”.  Most joint physical custody arrangements involve a roughly equal split of time between each parent’s home.  However, some joint physical custody cases involve a parenting schedule that is a substantial departure from the 50/50 model.  Those cases reflect the fact that the label does not often match the actual arrangement.

Moreover, the likelihood of a child custody case resulting in joint physical custody varies depending on the judge presiding over the case, or even on the county in which the case takes place. For example, Anoka County has a long-established pattern of being less-inclined to rule in favor of joint physical custody.

What if we have joint physical custody, and one parent wants to move out of state?

If two parents have joint physical custody and one wants to move out of state, the move would not necessarily bring an end to joint physical custody. If the parents cannot reach an agreement, they will need to return to court to determine a new parenting time order and what is in the child’s best interests. The burden of proof is upon the parent requesting to move.

What if I have sole physical custody, and want to move out of state?

If one parent has sole physical custody and wants to move out of state, a new parenting time order is needed. If the parents cannot reach an agreement, they will need to return to court to determine a new parenting time order and what is in the child’s best interests. The burden of proof is upon the parent requesting to move.

This is new law in the case of sole physical custody.  Until recently, a custodial parent who wished to move out of state with a minor child enjoyed a presumption in favor of the move.  It was the burden of the noncustodial parent to overcome the presumption by showing that the custodial parent’s intention in moving the child out of state was to interfere with the child’s relationship with the noncustodial parent.

What are the guidelines for parenting time?

There are no specific guidelines in Minnesota law for parenting time with the child’s non-custodial parent. In many cases, the parents are able to agree on a parenting schedule that is suitable for the child(ren). If the court is presented with a dispute, the court will often obtain guidance from a neutral professional, such as a custody evaluator or a guardian ad litem, to determine what is in the child(ren)’s best interests.

Who determines parenting time if my spouse and I cannot agree?

While the court ultimately has the authority to make that decision, in most cases, the judge presiding over the matter will want input from a neutral professional. So the determination is made by the court. But the court’s determination is influenced by the observations and recommendations of a guardian ad litem, custody evaluator or other parenting neutral. More information on child custody neutrals is available at Gerald’s Minnesota Divorce and Family Law Blog.

If I move out of the house and leave my spouse in the house with the children, how will it affect my chances of getting custody at a later date?

When a divorcing couple has children, there is great potential for one party’s move out of the house to affect the custody issue later in the proceedings. The decision to move out in such instances is extremely important, and should not be made without careful consideration of all the facts and circumstances.

The reason that it is so important is as follows: when the family court judge is making custody determinations, whether temporary or final, an important consideration is the “status quo” – that is, where and with whom is the child living now, and for how long. If one party moves out, and it is later determined that the children have been doing well in the environment that the moving party left behind, the moving party may be at a disadvantage at those later stages of the proceedings.

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