How to get custody of a child in minnesota

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 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.

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.

How to become a guardian of a child for a short period of time

My friend is raising her 7-year-old son alone. For health reasons, she is forced to spend several months a year in the hospital. Since there are no relatives, every time for this time it is necessary to attach the child to someone of his acquaintances. I heard that in such cases it is now possible to arrange custody of the child, is this true?

Sutyagina E.V., Vologda.

Indeed, the Federal Law "On guardianship and guardianship", in force since September 1, 2008, significantly expanded the types of guardianship (guardianship) over minor children.

Thus, it is possible to appoint a guardian for a minor child for a period when parents, for valid reasons - for example, due to a long business trip or prolonged treatment in a hospital and other similar cases - will not be able to fulfill their parental duties (clause 1, article 13 of the Law " About guardianship and guardianship). In this case, parents have the right to apply to the guardianship authority at the place of residence of the child with an application, indicating a specific person for the role of guardian. Upon consideration of the application by the guardianship body, an act on the appointment of a guardian is adopted, in which the term of his powers must be indicated. It should be noted that for the first time in Russian legislation, when establishing guardianship over minors, the desire of their parents is taken into account. In addition, in the case when a child is brought up by a single parent, this parent has the right to appoint a guardian (custodian) for the child in the event of his death (clause 2, article 13 of the Law "On guardianship and guardianship"). The corresponding order on "testamentary" custody is made by the parent in an application that is submitted to the guardianship authority at the place of residence of the child.

However, in both cases, the person specified by the parents may be appointed as the child's guardian only on condition that such an appointment does not contradict the law, according to which only an adult capable citizen who has not previously been deprived of parental rights. When appointing a guardian, his moral and other personal qualities, the ability to perform guardianship duties, the relationship between the guardian and the child, and also, if possible, the desire of the child himself (Article 146 of the RF IC), are taken into account. In addition, the guardian (curator) is always appointed with his consent (clause 2, article 10 of the Law "On guardianship and guardianship").

It should be emphasized that the appointment of a guardian (custodian) in these cases is not a basis for depriving or restricting parental rights. the rights and interests of the child.

If the interests of the child require immediate placement under guardianship (guardianship), provisional guardianship may be established under a simplified procedure, i.e. without the guardian (custodian) providing a number of documents confirming the necessary information about himself, for example, information about his state of health. The guardian provides this information later - within a month (in exceptional cases - two) after the establishment of guardianship, otherwise guardianship will be terminated. The possibility of establishing guardianship in a simplified manner is dictated by life, since the collection of documents, as a rule, takes considerable time, during which the interests of a child in need of guardianship may be seriously affected. Preliminary guardianship allows the child to keep family upbringing, and not to transfer him to an orphanage or other children's state institution.

An innovation of the law on guardianship is the possibility of appointing a guardian of a minor who has reached the age of 14 years, a specific person indicated in the application by the teenager himself (clause 3, article 13). However, in this case, guardianship can be issued only on condition that the specified person meets the above requirements of the law.

Lyubov Maksimovich, Art. Researcher at the Institute of State and Law of the Russian Academy of Sciences, PhD in Law, Associate Professor.

Rossiyskaya gazeta - Week - Federal issue: No. 5 (5084)

Public AdministrationFamily and Children Legal Week Project

Protecting the interests of the ward is the main task of guardianship in the USA

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American experts spoke about the organization of the system of guardianship and protection of the rights of people with mental disorders in the United States, answered questions from Russian colleagues and parents of children with disabilities.

Co-director of the Center for Global Inclusive Education Resources of the Community Inclusion Institute at the University of Minnesota Renata Ticha and Co-Director of the Research and Learning Center for Measuring Home and Community Service Outcomes, Brian Abery.

Experts noted that the main task of guardianship in the United States today is to protect the interests and ensure a decent quality of life for people with disabilities (HIA), including those with mental disorders. Even 20 years ago, people with mental disabilities were deprived of the right to free will on the grounds that they could not express their desires in a form that was understandable to others. However, according to the UN Convention on the Rights of Persons with Disabilities, every person should have this right. People with developmental disabilities need only additional support, which should be provided by the state.

“We don't have boarding schools as you understand them. Since the early 1960s, the US has been moving away from these types of institutions. There are very few of them left. As a rule, people with developmental disabilities are placed there if they pose a threat to themselves or others, says Brian Abery. “However, today 1.3 million US citizens are under some form of guardianship.”

There are several types of guardianship in the United States: limited, full, and emergency. In limited guardianship, the court establishes the limits of the person with developmental disabilities on the basis of specific facts and determines the powers of the guardian, the guardian has only those powers that are assigned to him. For example, the court decides that a person himself cannot make decisions in the provision of medical care. In such a case, it is the responsibility of the guardian. Such guardianship can be terminated.

Full guardianship is now used very rarely, and only in some states. It is appointed by a court decision if it is concluded that a person is completely incapable of making decisions. The guardian in this case decides absolutely everything for the ward and keeps his life under complete control. With full guardianship, the ward is deprived of many rights: the right to vote, marriage, refusal of medical care, reproductive rights. Full guardianship can only be terminated if the person with disabilities proves in court that it is no longer required.

Emergency care is used when a person is unable to make decisions independently for a period of time, for example due to a progressive illness or injury. Such guardianship is appointed for a short period of time.

Relatives or family members act as guardians in the USA. If there are no such people, the court appoints a guardian. This could be a social worker, a lawyer or a psychologist. The work of a guardian appointed by the court is paid by the state. There may be multiple guardians.

The main task of a guardian is to protect the interests of the ward. All decisions of the guardian must be made on behalf of and in the name of the person who is under guardianship, taking into account his interests and values. For example, if the ward wants to live with a partner, the guardian should help realize this desire. Every year, the guardian reports to the court on the condition of the ward in order to extend the guardianship. Also, the work of guardians is checked by social services.

Over the past 10 years, the care system and attitude towards people with developmental disabilities in the United States has changed a lot. It is now assumed that every adult has the ability to make decisions, since this ability is not innate, but an acquired skill that can be learned.

In the US, an alternative to guardianship has emerged - a supportive decision-making system. This is the process of supporting an adult with a disability in making decisions that affect the quality of his life: place of residence, work, leisure, etc. At the same time, it is important to understand that decision making with support is a skill and there is no ideal model for decision making with support.

Renata Tikha: “In our country, any person with a physical or mental disability over the age of 18 with a sufficient level of consciousness can enter into a decision-making agreement with support and even appoint an assistant on their own. Usually, a relative, friend, loved one is chosen as an assistant. The main task of such an assistant is to understand the desires of his "client" and help him make decisions. Of course, unlike caregiving, where all decisions are made by the caregiver, a supportive decision-making system is hard work - the assistant needs not only to convey and discuss different options with the person with a developmental disability for a long time, but also to make sure that they understand each other correctly ” .

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