Child custody refers to the field of law that governs a child's residence and the timesharing arrangements between his or her parents following a divorce or other comparable separation.
There are two forms of child custody recognized under Minnesota law: physical custody and legal custody. The right to make choices regarding a child’s daily activities and place of residence is known as physical custody. Legal custody is the authority to decide on significant matters for a child, such as religion, health care, and education.
We’ll dive deeper into the difference between the types of custody in Minnesota in this blog post, as well as everything you need to know to ensure you’re aware of your rights. Click the links below to jump directly to the questions you need answers to.
In this post, we'll cover the following frequently asked questions:
- How to get custody of your child?
- What are your rights after custody is decided?
- What do I need to know about child support?
- General questions on custody
- Terms and definitions
How to get custody rights of your child
How do I get custody?
First, investigate your options. If you don’t want to go to court, both parents will need to come to a complete agreement. You may also be able to work with a family law mediator to assist you in resolving custody conflicts.
Then, 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.
How much does it cost to file for custody?
The cost of filing for custody depends on a few factors. If you have to take your custody dispute to court, that is going to be more expensive because you will face court filing fees, attorney’s fees, mediation or evaluation expenses, and more. However, if you are low-income, receive public assistance, or otherwise cannot afford the filing fees, you may be eligible for a fee waiver.
What forms do I use to ask for custody if I was never married to the other parent?
If the mother and father of a child were not married at the time of the child's birth, the mother is entitled to exclusive custody of the child until a custody order is issued by a court. This is true even if both parents signed a Recognition of Parentage and their names both appear on the child's birth certificate (see Minnesota Statute 257.541).
Can I file for emergency custody?
Emergency custody motions, or “ex parte” actions, waive any requirements of notifying the opposing party before the hearing date. Regular motions, on the other hand, require notifying the opposing party 14 days before the hearing date.
To do this, you must prove that the order is required to prevent "immediate and irreparable hurt, loss, or damage."
This may include:
- concerns for the child’s safety,
- to be able to provide medical treatment or enroll a child in school,
- if a parent has left the state or country without other parent’s permission, or
- a non-custodial parent refusing to return a child to the parent who has custody.
Emergency and ex parte motions should be used sparingly and only when appropriate. If you want to file for emergency custody, we strongly recommend reaching out to a lawyer for help.
What if the other parent and I disagree about custody and parenting time?
If both parents are unable to reach an agreement on a custody arrangement, and efforts at mediation have failed, the Minnesota state court must decide what custody arrangements are in the "best interest" of the child.
There are two ways to seek custody of your child in Minnesota's courts:
- If you're married, submit a summons and petition for divorce or legal separation, and include a request for physical custody in the petition, or
- If you're already divorced, legally separated, or if you were never married but have proven paternity of your child, you can submit a petition or motion for custody in the county where your child resides permanently, or in the county where a court has previously issued a custody order.
Either way, you must notify the other parent in writing of your petition or motion in order to provide them a chance to present their case to the judge in the event of a hearing.
How can I increase my chances of getting custody?
It’s important to understand how a court establishes custody. In Minnesota, there are specific factors that are used to determine the child’s best interests. If you believe having custody of the child is in his or her best interest, then understanding these factors may help you to ensure your desired custody arrangement is successful.
When will child custody be decided?
If you go to court, custody is decided during the trial. When a decision has been made, the court will enter a written order that explains how the court made its decision on the new custody determination.
What factors will a judge consider when deciding if the parents should have joint custody?
The court takes into account the following considerations when determining custody:
- a child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;
- any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
- the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
- whether domestic abuse has occurred in the parents' or either parent's household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs;
- any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;
- the history and nature of each parent's participation in providing care for the child;
- the willingness and ability of each parent to provide ongoing care for the child; to meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
- the effect on the child's well-being and development of changes to home, school, and community;
- the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;
- the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
- except in cases in which domestic abuse has occurred, the disposition of each parent to support the child's relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
- the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.
Generally, the court will presume that joint legal custody is in the child's best interests if one or both parents are asking for it (although any parent may provide the court with evidence to the contrary). However, the court will apply a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse has occurred between the parents.
Additionally, the court must take into account each of the above factors and not base the judgment solely on one of them.
Understanding your rights after custody is decided
Can you still see your child if the other parent gets custody?
Even if one parent gets sole physical custody of the child, a court will add a parenting time schedule for the non-custodial parent if it determines doing so is in the best interests of the child.
If both parents agree on a parenting time schedule on their own, and the court agrees it’s in the best interest of the child, then the court will attach the agreement to the custody order. If you can’t agree, the judge will create a parenting time agreement that allows the non-custodial parent a minimum of 25% of the child’s time (assuming the judge finds doing so to be in the child’s best interest).
However, if the non-custodial parent has a history of domestic violence witnessed by the child or child abuse, the court may deny parenting time, restrict parenting time, or require a third-party supervisor to monitor the parenting time.
I’m not comfortable with my ex being alone with my child. What should I do?
If you are already involved in a court case for custody of your child, you can request that the judge require all visits with your child to be supervised by a third party if you don't feel comfortable letting your child be alone with their other parent.
If you are not currently involved in a court case, consult with a lawyer before requesting the court require supervised visits. Talking to an attorney will help you to organize the facts of your case to ensure you are able to provide the valid reasoning that the court would need.
However, it’s important to keep in mind that supervised visits are generally a temporary measure. After a given amount of time, if there have been no issues, the visits will likely become unsupervised.
Under what circumstances can custody be changed or modified?
You can ask the court to modify your current custody order if it is no longer in the best interest of your child.
Under Minnesota law, custody can be modified if:
- Both parents agree to the change,
- The parent with custody has let the child become a part of the other parent’s home,
- The child’s current environment is endangering their physical or emotional health or development, and the change is less harmful than the current situation, or
- The sole custodial parent asked to move with the child out of state, the court denied the request, and the parent moved anyway.
When can I modify custody?
Unless both parents agree, the court won't modify custody unless at least one year has passed since the court issued its original order.
If the court agrees to hear your case (whether or not this results in a change to the order), you will be unable to ask for another modification for at least two years.
The court will waive the one-year requirement if
- there is unwarranted, 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.
What should I do if the other parent isn’t following the court-ordered parenting time schedule?
If the other parent is not following a court order, you can seek the following courses of action. It’s a good idea no matter which route you seek to consult with a lawyer to discuss your options so you can choose the best route for you and your child:
- Seek mediation: Your custody order may require you to try to settle your disagreement with the other parent outside of court before you can file a motion with the court. Mediation can help you settle your disagreement and may even resolve the issue more quickly.
- File a Parenting Time Assistance Motion: This motion can be used to ask the court to change a parenting time schedule, enforce your existing schedule, or ask for makeup parenting time.
- File a Contempt Action: “Contempt of Court” is a decision by a judge when someone disobeys a court order they were fully aware of without good reason. This action may help to enforce your court order.
- Seek a Modification of Custody: If the other parent has denied or interfered with your court-ordered parenting time, this may be a reason to ask for custody to be changed. With any changes to a custody order, it’s vital to speak with a lawyer.
At what age can my child decide which parent to live with?
In Minnesota, there is no defined age at which a child can choose which parent to live with. The court will take into account the child’s preferences along with the rest of the criteria the court must consider when determining custody. Because there is no specified age in the statutes, the judge must determine if the child is old enough and mature enough to make this decision. The court will also consider the reason(s) for the child’s preference.
I want to move out of state with my child, but the other parent won’t agree to the move. What should I do?
If the other parent has been granted parenting time in your court order, you are required to obtain either their permission or another court order (in which the court would have decided the move is in the child’s best interest) to move with the child.
If you are trying to pursue a court order to enable you to move out of the state with the child, you should consult with a lawyer to build your case.
What if the other parent is trying to move my child out of state?
If the other parent has physical custody of the child, he or she will have to bring a motion before the court requesting permission to move. He or she will have to prove to the court that the move is in the best interests of the child.
Can a parent change a child’s last name without the other parent’s permission?
To change the child’s last name, both parents must be notified of the pending name change application. The parent applying for the name change must prove that the other parent has been notified.
Can the non-custodial parent access the child's medical, health, and school records?
Regardless of who has custody, both parents have the following rights (unless these are revoked by a judge in the best interests of the child):
- right of access to, and to receive copies of, school, medical, dental, religious training, police reports, and other important records and information about the minor children;
- right of access to information regarding health or dental insurance available to the minor children;
- right to be informed by the other party as to the name and address of the school of attendance of the minor children;
- right to be informed by school officials about the children's welfare, educational progress and status, and to attend school and parent-teacher conferences. The school is not required to hold a separate conference for each party, unless attending the same conference would result in violation of a court order prohibiting contact with a party;
- right to be notified by the other party of an accident or serious illness of a minor child, including the name of the health care provider and the place of treatment;
- right to be notified by the other party if the minor child is the victim of an alleged crime, including the name of the investigating law enforcement officer or agency. There is no duty to notify if the party to be notified is the alleged perpetrator; and
- right to reasonable access and telephone or other electronic contact with the minor children.
Understanding child support
If the other parent isn’t paying child support, can I deny them parenting time or refuse to allow visitation?
No. In Minnesota, the ability of a parent to see his or her child is not dependent on whether child support is paid. If a parent has court-ordered visitation time with the child, you cannot revoke their access to the child regardless of their nonpayment.
However, you may seek enforcement of a child support order. For more information, we suggest you consult with a lawyer.
If the parents have joint custody, does anyone pay child support?
The amount of child support is calculated based on the combined gross monthly income of both parents, the amount of parenting time allocated between the parents, and costs such as daycare or health insurance.
General questions on custody
Can I get custody of a child who isn’t mine?
Someone other than the biological, adoptive, or legal parent can file for custody of someone else’s child. This is called third party custody. This area of law is complex, and there are several different methods that one can use to attempt to file for custody of a child that is not their own. These include:
- Involvement in Child in Need of Protection or Services (CHIPS) case
- Delegation of Parental Authority (DOPA)
- Designation of Temporary or Standby Custodian
Before trying to get custody of another person’s child, it is highly recommended you speak with a lawyer to understand your options and build your case.
How does domestic abuse affect custody?
The court begins with the presumption that if either or both parents request it, joint legal custody is in the best interests of the child. However, if domestic abuse has occurred between the parents, the court will begin with the opposite presumption. The court will consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs.
If there is domestic abuse between the parents, the parent who has committed the abuse must prove that joint custody would be best for the child despite the abuse.
Can a parent who committed violence get custody or visitation?
The court will consider the negative impact that any violence has had on the child (whether the abuse is against the other parent, the child, or another person). However, it is still possible that a parent who has committed violence will get custody or visitation if the court determines that doing so is in the best interest of the child.
Do grandparents have custody or visitation rights?
Generally, third parties do not have custody or visitation rights to the child unless there is court action filed to obtain those rights. If you are a grandparent seeking custody or parenting time of a child, you should consult with a lawyer.
Is joint custody the same as 50-50 child custody in Minnesota?
No. In Minnesota, joint custody does not necessarily mean you will have a 50-50 parenting time arrangement. A 50-50 split is just one possible parenting time arrangement that may be decided upon if two parents have joint custody.
Terms and definitions
What is legal custody?
Legal custody, according to Minnesota Statute 518.003, is the right to determine the child's upbringing, including education, health care, and religious training. If parents have joint legal custody, that means both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing.
What is physical custody?
Physical custody refers to the routine daily care of the child and where the child lives. If parents have joint physical custody, that means that the routine daily care and control and the residence of the child are structured between the parties.
What is parenting time?
Parenting time, traditionally called “visitation”, is the time each parent has separately with the child, regardless of who has custody.
The following are different types of parenting time:
Supervised parenting time
Supervised parenting time is an arrangement in which a parent’s time with the child must be supervised by a third party. Depending on the court order, the supervision may be done by a friend, family member, or a professional supervisor (usually at a supervised center). In some situations, the other parent may also provide supervision.
Reasonable Parenting Time
Reasonable parenting time is an arrangement in which there is no specific schedule set for parenting time. Instead, the court leaves it up to the parents to figure out when they will each spend time with the child.
Reserved Parenting Time
If you ask the court to reserve parenting time, it means you are not asking for a decision about parenting time at this time. Reserved parenting time refers to a status where the court has not made a set parenting time schedule. One may, however, be created in the future.
Specific Parenting Time
Specific parenting time is when the court order sets a specific schedule for when the child is with each parent. The schedule can also include holidays, birthdays, and vacation time.
Suspended Parenting Time
If a parenting time arrangement does not allow one parent to have any parenting time with the child, this is called suspended or “denied” parenting time.
What is a parenting plan, and do I need one?
A "parenting plan" specifies how parents will share parenting time and decision-making duties, how they will settle their disputes, and any other relevant issues. This plan is submitted to the court that will allocate parenting time. It is a requirement. It can, however, be as general or specific as you like.
What is an ex-parte order?
An ex-parte order is an emergency order. Normally, all motions must be delivered to the opposing party 14 days before the hearing date in order to be valid. Ex-parte motions, on the other hand, waive any notice requirements. This makes it possible to get into court sooner.
What is a custody evaluation?
In contested custody matters, the court may order an inquiry, report, and recommendations on the child's custody arrangements. To run the custody evaluation, a custody evaluator is ordered by the court to gather information about both parents as well as the child. To do so, they will conduct interviews, make observations, and even make home visits. Afterward, they will make their recommendations about custody and parenting time to the court.
What is a guardian ad litem (GAL)?
A guardian ad litem is a court-appointed representative for a child whose best interests are being evaluated. GALs research, monitor, and advocate for the best interests of the child throughout the court process while maintaining confidentiality. They also offer custody and parenting time recommendations.
GALs are often appointed when there are concerns about the child's safety. In some cases, appointment of a GAL is required by law.
What is a parenting consultant?
A parenting consultant is a third party that may be appointed to assist parents in resolving parenting time disputes and other concerns (such as what school a child should attend). A parenting consultant can be appointed by the court only if the parents agree. The consultant can only make decisions on the topics specified in their contract and court order.
Still have questions?
Child custody is a complex topic in Minnesota. If you still have questions that went unanswered, please contact one of our family lawyers for a free consultation. We’ll help you understand your options so you can choose the best path forward for you and your family.