Minnesota Divorce FAQ’s – Parenting

This information is from Maury D. Beaulier, the DivorceInfo Network Lawyer for Minnesota. Click here to visit his web site.

How does custody get decided as between a parent and a third party?

No answer.

How does custody get decided as between parents?

When custody is being determined for the first time, the Court must determine what is in the children’s best interests.  To determine what is in the children’s best interest, the court weights thirteen factors that are set out in Minnesota Statutes. That statute can be located athttp://www.revisor.leg.state.mn.us/stats/518/17.html.  As you may note, the factor’s are less than clear. As a result, the way you present your case to the custody evaluator is important.

Once custody has been determined and a change of custody is requested, the burden on the party seeking to change custody is much higher. The Court must find that there has been endangerment OR that the child has been integrated into the household of the non-custodial parent by agreement of the parties AND that the benefit of the change outweighs the difficulties created by the change.

What’s the terminology for custody?

As you may know, there are two types of custody under Minnesota Statutes: “Legal” and “Physical” custody.

Legal custody refers to the right of the parents to participate in important decisions in the lives of their child(ren). This specifically includes decisions related to schooling, medical care, religion, extra-curricular activities and other important events. There is a very strong presumption under Minnesota law that these responsibilities should be shared by the parties. The only time that legal custody is not shared is when the parties demonstrate a complete inability to communicate or where there has been domestic abuse.

Physical custody is what most people think of when they hear the term custody. It refers to the primary physical residence where the child will live. There is a presumption under Minnesota law favoring sole physical custody to one parent or the other. This presumption is based upon psychological studies that have indicated that children respond better when their physical environment is consistent.

 

Is there a presumption in favor of not changing custody arrangements?

Yes. Once custody has been determined and a change of custody is requested, the burden on the party seeking to change custody is much higher. The Court must find that there has been endangerment OR that the child has been integrated into the household of the non-custodial parent by agreement of the parties AND that the benefit of the change outweighs the difficulties created by the change.

What effect does the misconduct of one of the parents have on custody?

Since Minnesota is a no fault state, misconduct has little bearing on the divorce issues including custody.  Misconduct only becomes relevant if it affects the “best interests of the minor children.”  In determining whether misconduct affects the best interests of the minor children, the Court will not make moral pronouncements and assume that a person who has an affair or is co-habitating with another person of the opposite or same sex is improper as the custodial parent.

Domestic abuse, however, can have a serious impact on custody.  A person is presumed to be improper as the custodial parent if that person has been convicted of domestic abuse in a criminal proceeding or that  person has been found to have committed an act of domestic abuse as part of a restraining order

What effect does the mental health of one of the parents have on custody?

The mental stability of each party is one of the factors that a court must consider in determining custody. the court must find, however, that any mental health issues actually impact the minor children.  For example, it would be ineffective to seek custody because the other parent suffers from depression if that depression is being treated and controlled by medication since it has no impact on the parent-child relationship.

What effect does the preference of the child have on custody?

Under Minnesota Statutes children who deemed to be of suitable age and maturity may express a preference regarding custody.  In most cases, the child must be 12 years old or older to express a preference.  That preference is NEVER dispositive although it becomes more persuasive as the child matures.

How does visitation get set?

The term “visitation” has been replaced under Minnesota Statutes by the term “parenting schedule”.  Like custody, parenting schedules are to be determined based on what is in the best interests of the children.  If left up to a court, however, the result is often a schedule for the non-custodial parent similar to the following: alternating weekends, one or two days per week, alternating legal holidays and two weeks for vacation each year.

Is there such a thing as “standard visitation”? If so, what is it?

There is no such thing in Statute as “standard visitation”.  However, courts are not particularly creative when creating parenting schedules. As a result, Courts often pound round pegs into square holes by imposing as schedule similar to the following: alternating weekends, one or two days per week, alternating legal holidays and two weeks for vacation each year.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

Crafting parenting schedules between parents in different states is far more difficult and varies widely from case to case. Once again, the determination is based on what is in the best interests of the children.

What rules govern cases where the custodial parent wants to move away with the children?

Minnesota Statutes include a presumption that it is in the best interest of a child to remain with the custodial parent.  To relocate out of the state with the minor child you must first have:

(1) an agreement of the parties; or

(2) permission of the court.

If an agreement cannot be reached, permission of the Court may be sought by filing a motion with the Court.  You should not take anything for granted.  Prepare carefully for your motion. The motion should be supported by documentation demonstrating that you have though  the matter through and that the relocation is in the child’s best interest. To prepare, you may wish to include the following:

NEIGHBORHOOD & SCHOOL. Know where you will be living and describe the benefits of the neighborhood and the schools the child will attend (photos are helpful);

DAYCARE. Research any daycare facilities that you intend to use and include as part of your motion a brochure or contract from the provider;

EMPLOYMENT.  If you are moving to improve yourself financially, include information regarding your new job or your planned education including any employment contracts or offers, benefit information or brochures.

HEALTH.  If there are any health considerations regarding the move, include those as part of your motion.  For example, if you are moving to a warmer climate that benefits asthma (yours or the child’s) include that in your motion.

To contest the move, the opposing parent must demonstrate that the move is not in the child’s best interests.  To do so, the parent must demonstrate that the move endangers the child and that the endangerment is created by specific threats.

If the Court allows the relocation, it often requires the party moving to pay more of the transportation costs related to visitation.

There is no “standard” visitation schedule when the visitation must occur at a distance.  Often, however, the courts grant the non-custodial parent extended access times for fall breaks, spring breaks, Christmas breaks and summer months.

What visitation rights do grandparents have, if any?

Grandparents have visitation rights which flow through their children.  That means a grandparent can seek regularly scheduled time with their grandchildren if the child’s parent supports that petition.

Other issues in Minnesota:

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