How often can you go to court for child custody

Minnesota Child Custody Laws | Custody & Visitation in Minnesota

What's the Difference Between "Physical Custody" and "Legal Custody" in Minnesota?

Minnesota child custody laws define physical custody as the routine daily care and control of a child. Examples of care and control include bathing, disciplining, or preparing meals for a child.

Legal custody, on the other hand, is the ability to make significant decisions for a child. For example, parents with legal custody can help decide where a child should go to school, whether they should get a flu shot, or what church they should attend.

What is "Joint Physical Custody"?

In the law, "joint" means "shared." It does not necessarily mean equal. (Minn. Stat. Ann. § 518.17 (b)(8).) In Minnesota, two parents can share joint physical custody of their children, and it does not mean that the children have to spend an equal amount of time in each home. The only requirement is that the children live in each home for a scheduled period of time.

Joint physical custody could mean spending every other weekend with one parent, or, living 50% of the time with each parent, or anything in between. Parents can also share joint legal custody if the court believes that both parents will cooperate when it comes to matters involving the child.

How to Get Physical Custody of Your Child?

The first thing to do is to explore your options. Parents are often able to work through their differences informally, without resorting to the courts. In Minnesota, there are many excellent family law mediators and collaborative law specialists who can help you resolve disputes about physical custody.

However, if you can't resolve your differences informally, you'll need to go to court. There are two ways to seek custody of your child in Minnesota's courts.

• if you're married, you can file a summons and petition (which will initiate divorce proceedings) for a divorce or legal separation, and ask for physical custody in the petition, or
• if you're already divorced or legally separated, or if you were never married, but you established paternity of your child, you can file a petition or motion for custody in the county where your child is a permanent resident or in the county where a court has entered an earlier custody order.

In either case, you will have to give written notice of your petition or motion to the other parent, so that both parents have an equal opportunity to explain their respective positions and talk to the judge if there's a hearing.

How Do Minnesota Courts Decide Child Custody?

Minnesota courts are required to look at the evidence and apply 13 separate factors to determine what custodial arrangement is in the child's best interests. Judges must always focus primarily on what is in a child's overall best interests.

A judge cannot look at one or two factors and ignore the rest; judges must apply all 13 factors, including:

• the parents' wishes
• the child's reasonable preference, if the court deems the child to be of sufficient age to express a preference (sometimes judges will meet privately with older children about where they want to live)
• the child's primary caretaker (this factor doesn't create a presumption, or legal assumption, that the primary caretaker parent should automatically get sole physical custody, but courts do consider it)
• the attachment and closeness of each child-parent relationship
• 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
• the child's adjustment to home, school, and community
• the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
• the permanence, as a family unit, of the existing or proposed custodial home
• the mental and physical health of all individuals involved, except that a disability can't determine the outcome unless the arrangement isn't in the child's best interests
• each parent's ability to give the child love, affection, and guidance, and to continue educating and raising the child and teaching the child about the family culture and religion or creed, if any
• the child's cultural background
• the effect of domestic abuse on the child that has occurred between the parents or between a parent and another individual, regardless of whether the alleged abuser is or ever was a family or household member of the parent, and
• each parent's ability and willingness to encourage and permit frequent and continuing contact by the other parent with the child (except in cases in which another court has separately decided there was domestic abuse). (Minn. Stat. Ann. § 518.17.)

If either parent is seeking joint physical custody, the court has to consider four more factors:

• the ability of parents to cooperate in child-rearing
• methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods
• whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing, and
• whether domestic abuse has occurred between the parents.

When the court has reached a decision, it must issue a written order with "findings" (an explanation about how the judge applied the facts to each of the factors and how that application supports the new custody arrangement). (Minn. Stat. Ann. § 518.17 (b)(1).)

The court order will state whether physical custody is sole or joint. If one parent receives sole physical custody, the court order will provide a detailed "parenting time" (visitation) schedule for the other parent. If both parents receive joint physical custody, the order will clearly state where the child will live, how long the child will stay in each place, and how the parents will handle transportation responsibilities.

Can You Still See Child, If Your Ex Gets Custody?

In most cases, yes. Typically, when the court awards primary physical custody to one parent, it adds a parenting time or visitation schedule for the non-custodial parent and child. In Minnesota, the court presumes that it's in the child's best interest to maintain a relationship with both parents, regardless of the custody order. (Minn. Stat. Ann. § 518.175 (1)(a).)

If you and the other parent can agree on a parenting time schedule, and the court agrees that the schedule is in the child's best interest, the judge will adopt the agreement and attach it to the court's custody order. However, if you can't agree, the judge will create a visitation agreement allowing the non-custodial parent at least 25% of the child's time (unless the judge believes it's not in the child's best interest. ) (Minn. Stat. Ann. § 518.175 (1)(g).)

If there is a history of domestic violence or child abuse, the court may deny or restrict a non-custodial parent's time with the child. (Minn. Stat. Ann. § 518.175 (1a)(a).)

If the court believes it's still safe for the parent to have visitation, the judge may require a third-party supervisor to monitor the time the parent spends with the child. In some cases, the court may order parenting time to take place at a court-sanctioned visitation center. (Minn. Stat. Ann. § 518.175 (1)(b).)

How Can You Modify Child Custody Order in Minnesota?

In today's world, it's common for both the parents and children's schedules to change. Although most schedule and life changes won't impact custody or parenting time, if your current orders are no longer meeting your family's needs, you can request a review from the court. However, the court favors stability for children, so the law carefully monitors a parent's request to change the order.

Unless both parents agree, the court won't modify custody or parenting time unless at least one year has passed since the court issued the original order. (Minn. Stat. Ann. § 518.18 (a)) Additionally, if the court hears your motion to modify (whether or not the judge changed the order), you can't ask for another modification until at least two years after the prior motion. (Minn. Stat. Ann. § 518.18 (b).)

The court may waive the one-year requirement if the judge finds that:

• there is a persistent and willful denial or interference with parenting time, or
• the court believes that the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development. (Minn. Stat. Ann. § 518.18 (c).)

If you're requesting a change to physical custody (for example, if you're asking the court to change the child's primary residence), the court won't hear your motion unless you demonstrate:

• unwarranted denial of or interference with parenting time, or
• that, since the last order, there is a change in circumstances, and
• that a modification of the current order is necessary to protect the child's best interests.

Once you demonstrate a need for a modification or review, the court will then apply the best interest standards (see above) to determine if the current arrangement needs to change (unless both parents previously agreed to apply a different standard.) (Minn. Stat. Ann. § 518.18 (d)(e).)

Resources

For useful resources and more information on this topic, see Child Custody and Parenting Time in Minnesota (presented by the Minnesota Judicial Branch Self Help Center).

For information about modification of physical custody, see Nolo's Essential Guide to Child Custody & Support

Frequently Asked Ohio Child Custody Questions

Ohio Family Law Attorneys provide answers to frequently asked questions with regards to Ohio child custody and Ohio custody laws.

Who will get custody of our child(ren)?

If custody of the minor child(ren) cannot be agreed upon by the parties, then the court will look to O.R.C. 3109.04, which requires the court to take into account that which would be in the best interest of the minor child(ren).

In determining the best interest of the child(ren), the Court is required to consider all relevant factors. A list of applicable factors is found in O.R.C. 3109.04(F)(1).

After evidence on the matter of custody is presented and admitted the court will apply the evidence to the factors in ordered to make its determination for a custody order. As such, who will be granted custody will vary on a case-by-case basis.

Related Article: Will I Get Custody?

What is joint custody? What is sole custody?

Joint custody in Ohio is referred to as shared parenting. Shared parenting, in short, can be defined as a parenting plan agreement in which both parents are deemed the residential parent of the minor child(ren) and both equally share in the decision making for the minor child(ren). For the statutory depiction of shared parenting refer to O.R.C. 3109.04.

Related Article: Joint Physical Custody vs. Joint Legal Custody

If both parents share custody does anyone pay child support?

It depends on the circumstances of the parties and the circumstances of the case. Please note that an award of child support is for the benefit of the child(ren), not the other party. As such, courts typically require a very good reason for a zero dollar child support order. It should also be noted that shared parenting does not mean 50/50 parenting time.

When determining whether child support is appropriate in a given case the court will consider among other things the incomes of the parties and the parenting time of the parties. If there is a significant disparity in either, there will likely be a child support order, regardless if there is shared parenting or not.

Related Article: Who Pays Child Support If We Share Custody?

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

No! Parenting time and child support are two separate issues; one has absolutely nothing to do with the other. If a party acts in the above stated manner, they could be held in contempt of court and be subject to fines or possibly a jail sentence.

Related Article: Options If Denied Parenting Time Over Owed Child Support

When can my child decide which parent to live with?

Ohio law does not provide a predetermined age, though many counties do in their local rules. Often they are addressed in the county’s standard order of parenting time. The majority of counties appear to choose the age of 16 as the age in which the minor child may make the choice on their own behalf.

However, it is important to note that mitigating circumstances can outweigh the child’s decision. Accordingly, if the child’s decision is not determined by the court to be in the child’s best interest, then the child’s preference will be not be ordered.

Related Article: Choosing Mom or Dad: Can A Child Choose Where To Live?

Do grandparents have custody and visitation rights?

Yes, though they are often difficult to procure, as parents have a constitutional right to raise their children. In regards to custody, O.R.C. 3109.04 depicts the manner in which a non-parent, such as a grandparent, may obtain custody of a minor child.

In short, the court must find the parents to be unfit in order to grant custody to a non-parent. This is a much higher standard then the best interest standard that the court uses when determining custody between two parents.

In regards to visitation/companionship rights, O.R.C. 3109.051(B)(1), 3109.11, 3109.12, and 3109.13 depicts the circumstances where a non-parent relative of a child may seek visitation/companionship rights. Again, the best interest standard is applied and all factors listed in O.R.C. 3109.051 may be utilized.

Related Article: What Visitation Rights Do Grandparents Have?

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

A parenting plan is essentially a set of parenting guidelines that parents agree to or the court orders. Said plan will include, but is not limited to, agreements or orders concerning custody; parenting time; child support; tax exemptions; extracurricular costs; and health insurance. Some type of parenting plan will be required if you have children.

Related Article: What Should Be Covered In A Parenting Plan?

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

Yes and no. If your separation agreement includes a straight child custody/child support order and includes all of the items required via statute or local rule, then yes it can be incorporated into the decree.

If instead, you have shared parenting or a shared parenting plan, then a decree of shared parenting will need to be issued by the court.

What can I expect from temporary orders?

A variety of temporary orders can be issued for a variety of reasons.  With those regarding support, be it spousal or child, the court generally attempts to maintain the status quo, whatever that may be in a given situation.

Often Ohio courts will issue temporary restraining orders in an effort to protect the assets and liabilities of the parties, and to attempt to deter parties from behaving irrationally while the matter is pending.

Ohio Courts also issue temporary custody orders. Again, the object is to keep the status quo. However, a variety of issues can be evinced which may alter the “status quo,” such as alcoholism or abuse. Regardless of what the temporary order is for, it is only “temporary” so any temporary order issued is not dispositive of what the final order of the court will be.

Related Article: Preparing For A Temporary Orders Hearing

When will child custody be decided?

Under Ohio law, child custody is officially decided when your Decree of Divorce/Dissolution or your Decree of Shared Parenting is signed by the judge and time stamped by the Clerk of Courts.

Related Article: How Long Should It Take To Serve Custody Papers?

When can I modify custody?

Custody can be modified at any time the court determines that, since the date of the final order, a change of circumstances occurred which warrants a modification of custody and that modification is in the best interest of the minor child(ren).

Related Article: Can Parents File For A Custody Modification At Any Time?

What if we cannot agree on a custody arrangement?

If the parties cannot agree to a custody arrangement, then the court will decide what is in the minor child(ren)’s best interest and issue a custody arrangement to be followed.

What is an ex parte order?

An ex parte order is an order issued without hearing.

Related Article: The Nuclear Weapon Of Divorce: Orders Of Protection

How is custody decided?

If custody of the minor child(ren) cannot be agreed upon by the parties, then the court will look to O.R.C. 3109.04, which requires the court to take into account the best interest of the minor child(ren).

In determining the best interest of the child(ren), the court is required to consider all relevant factors. A list of applicable factors is found in O.R.C. 3109.04(F)(1).

After evidence on the matter of custody is presented and admitted, the court will apply the evidence to the factors in order to make its determination for a custody order. As such, who will be granted custody will vary on a case-by-case basis.

Related Article: The Factors Courts Consider When Determining Child Custody

How can I increase my chances of being awarded custody or shared parenting with a 50/50 parenting time schedule?

Courts in Ohio award custody based on the best interest of the minor child. To increase your chances of being awarded custody review the factors listed in O.R.C. 3109.04(F)(1) and see how the apply to you and see how they apply to the opposing party. The more evidence that you can provide to the court to support your cause, the better chance you will have of being awarded custody.

In regards to shared parenting, the same factors are relevant, but what is really important to the court is the parties’ ability to communicate together and to jointly decide what is in the best interest of the minor child(ren).

Related Article: Custody Gameplan: Building A Case For Equal Custody

What is visitation?

In Ohio, parental visitation is referred to as parenting time. In general it is the phrase used when referring to the time that parents spend with the minor child(ren).

Can a judge order supervised parenting time or no parenting time?

Yes, a judge may order supervised parenting time or no parenting time if the circumstances presented warrant such an order. For example, a judge may order supervised parenting time for an alcoholic that only recently began the recovery process and was never left alone with the minor child(ren) during the marriage because of the parent’s alcoholism; or a judge may order no parenting time if evidence presented showed that a parent, for instance, sexually or physically abused a minor child(ren), or has a current drug addiction problem.

In short, for the court to order no parenting time, evidence must be presented which shows that the parent/child relationship would be detrimental to the child.

Do courts favor the mother over the father?

It often appears that way, but no. Ohio statutes are written in which on their face and application there is no favoritism in custody matters. All decisions are made based on the facts provided for a given case.  With that being said, the social mores often dictated by society have an impact on custody matters.

Related Article: 5 Challenges Divorced Dads Must Overcome

What should I know before a custody trial?

Everything! You need to know whom you are going to call to testify on your behalf and the purpose of their testimony. You need to know what exhibits you will be admitting as evidence and why they are important to bring before the court. You need to know who the opposing party is going to be calling to testify and why. You need to know what exhibits they are going to attempt to admit as evidence and analyze the possible purpose of said exhibits. You need to know the law and how it applies to you.

This is by no means an exhaustive list, there are number of things which could come up during a custody matter in which you would need full knowledge of. But lastly, the most important thing you must know, is what you want to get across to the court.

Related Article: Divorce Trial Prep: One Week Before Trial

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

Yes, the more you collect the more your attorney doesn’t have to, which of course saves you money. However, it is important to consult your attorney about the kind of evidence that is required and the proper way of acquiring it.

For instance, if a documentation certification is not properly acquired you open up the possibility of not being able to admit that certain document as evidence because the opposing party could argue that it is hearsay.

Do I need to use a Guardian ad Litem?

Ohio courts do not require the use of a GAL (Guardian ad Litem) in a typical custody action. However, they are often a good idea and can benefit your case.

A Guardian ad Litem is an attorney appointed by the court to represent the best interest of the minor child(ren) and report what they believe is in the child(ren)’s best interest to the court.

The GAL will meet with both parents and the child(ren) and see how the child(ren) interact with parents individually. Typically a GAL will generate a report and file it with the court. A GAL’s work is paid for by one of the parties or both depending on the circumstances, and costs vary from county to county and on the amount of work performed.

Though the GAL’s report is not dispositive of the court’s decision concerning custody or shared parenting, courts do often give a great deal of weight to the GAL’s opinion. As such, if the GAL’s opinion favors you, then the benefit outweighs any costs associated.

Related Article: Using A Guardian Ad Litem In A Custody Case

Will my child need to appear in court?

It is unlikely that your child would have to appear in court to be examined by counsel while in front of both parents. What is more common is an interview by the Judge or Magistrate. Here, the minor will have a one-on-one conversation with the Judge or Magistrate with no parties permitted to be present.

Of course if your child is of an age where they cannot clearly articulate facts or have a clear understanding of what they are being asked, then the court will not interview them.

What if my wife/mother of my children tries to move the kids out state?

The answer to this question depends on the status of the custody determination. If you already have a final order through the court, that order will provide safeguards enabling you to prevent or at a minimum stall an attempted move.

If, however, no complaint has been filed, then you will need to file an emergency motion with the court to prevent the move.

Related Article: Child Custody Laws: How To Block A Move Out Of State

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

In most cases, no. However, if a father has gone a significant time without contact with the minor child or has failed to pay child support for the minor child then the court may allow the name change without the father’s permission.

Related Article: What Is The Process For Changing My Child’s Last Name?

If I have custody, will I receive child support?

Most likely, yes, though the amount will vary depending on the circumstances of the case.

Related Article: How To Calculate Child Support

How to obtain guardianship or guardianship of an adult

Guardianship is established to protect the rights and interests of citizens recognized by the court as incompetent. People who, due to a mental disorder, cannot understand the meaning of their actions or control them, are recognized as incompetent.

Guardianship is established over people who have been limited by the court in their legal capacity. Citizens who, due to a mental disorder, can understand the meaning of their actions, but in order to manage them, need help. Citizens who, due to addiction to alcohol, drugs or gambling, put their family in a difficult financial situation are also considered to have limited legal capacity.

Depending on the reason for the establishment of guardianship, guardians and trustees are different Rights and obligations of a guardian their actions or direct them. Also, the guardian must protect the rights and interests of the ward in relations with any persons, including in courts, without special authority. The guardian is the representative of his ward and makes all necessary transactions on his behalf and in his interests.