MN Child Custody Questions

Frequently Asked Child Custody Questions

Q: What’s the difference between “legal custody” and “physical custody”?

A: Legal custody means the right to determine the child’s upbringing, including education, health care, and religious training [Minn. Stat. § 518.003, subd. 3(a) (2009)].

Joint legal custody means that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.  Sole legal custody means that one parent has the authority to make the above-referenced decisions.

Physical custody means the routine daily care and control and the residence of the child. So, joint physical custody means that the routine daily care and control and the residence of the child is structured between the parties [Minn. Stat. § 518.003 , subd. 3 (d), (e)].  Sole physical custody generally means that the child lives more days with the parent that has sole physical custody than the parent who does not.  However, there are situations where one parent is awarded sole physical custody but the parties share an equal schedule of parenting time.

There is a rebuttable presumption in Minnesota that joint legal custody is in the best interest of a child. There is no presumption regarding physical custody. Physical custody is determined by evaluating the best interest of the child factors as set forth in Minn. Stat. § 518.17.

We have successfully argued many cases where we convinced the Court that an equal parenting arrangement is in the best interest of a child.

Q: Does adjudication of paternity grant custodial rights?

A: No. An adjudication of paternity simply declares the existence of a legal father-child relationship.  A custody order is required for newly adjudicated fathers to establish their custodial rights.  The Court may not address custody at a paternity hearing unless the issue is properly raised prior to the hearing.

Therefore, it is important to seek competent representation in these matters to assure that all procedural steps have been accomplished if you wish to have custody or parenting time rights.

Q: What is a custody evaluation?

A: If the parties cannot agree on custody, it is common for parties to have a neutral evaluator perform an evaluation of your family.  This custody evaluation will provide the Court’s recommendations regarding how the best interest factors apply to your child, and ultimately, what the evaluator believes is the most appropriate custody arrangement for your child.

If available, custody evaluations can be performed by court services through the county in which your case is venued. Evaluations can also be performed by a private evaluator.  During the investigation, the evaluator normally will review any pleadings from your case and any other records that are relevant to custody; meet with the parties and the child; and contact any collateral resources prior to making recommendations.

The custody evaluation process usually takes approximately 3 – 4 months to be completed.  Custody evaluations are not binding but are highly persuasive to the Court and are difficult to contest. Therefore, even parties who were previously unable to reach an agreement will often settle on a custody arrangement after receiving the report from the evaluator.

Q: Is there an age at which a child can choose the parent he/she wants to live with?

A: No. The Court does evaluate the reasonable preference of a child, if the Court deems the child to be of sufficient age to express a preference.  Generally, the older the child is, the more likely the Court will consider his or her preference.

However, there are numerous other factors that the Court uses to determine the child’s best interests with respect to custody.  The Court is prohibited from using one factor to the exclusion of any of the other factors [Minn. Stat. § 518.17, subd. 1 (a)].

Q: Can I or the other parent move the child out of the state?

A: A parent cannot move children out of state without agreement or permission of the other parent or the Court.

Therefore, you will need to file a motion with the Court to get permission to move the child out of the state if the other parent does not consent to the move. The Court then will decide whether or not it is in the child’s best interests to move out of the state [Minn. State. 518.175, subd. 3]. The party wishing to move the child out of state has the burden to prove the move is in the child’s best interests, which can be difficult.