Child custody is 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: the right to make choices regarding a child's daily activities and place of residence
- Legal custody: the right to make choices regarding significant matters for a child, such as religion, healthcare, 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.
How to get custody rights of your child
How do I get custody of my child?
To get custody of your child, you will need to do one of the following things:
- Come to a complete agreement with the child's other parent,
- Work with a family law mediator, or
- Go to court.
How much does it cost to file for custody?
It depends.
In most cases, you will need to pay a filing fee when you file your petition for custody. Fees will vary depending on the county you file in. You may be eligible for a fee waiver if you meet your county's requirements for one.
If you have to take your custody dispute to court, however, you will face court filing fees as well as attorney’s fees, mediation or evaluation expenses, and more.
Can I get custody if I'm not married to the other parent?
If the parents are not married when the child is born, 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 sign a Recognition of Parentage form, and their names both appear on the child's birth certificate (see Minnesota Stat. 257.541).
How do I file for emergency custody?
To file for emergency custody, you must prove that the order is required to prevent "immediate and irreparable hurt, loss, or damage."
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.
Valid reasons to file include:
- Concerns for the child’s safety
- In order to provide medical treatment
- In order to enroll a child in school
- If a parent has left the state or country without other parent’s permission
- If a non-custodial parent refuses to return a child to the parent who has custody
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 court must decide what custody arrangements are in the "best interest" of the child.
How can I increase my chances of getting custody?
In Minnesota, there are 12 best interest factors that are used to determine the best custody arrangement for the child, outlined in Minnesota Stat. 518.17. Understanding these factors may help you to ensure your desired custody arrangement is successful.
The factors a judge will consider when deciding custody are:
- Child's comprehensive needs: A child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development.
- Special needs and services: Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services.
- Child’s preference: 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.
- History of domestic abuse: 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
- Parental health and safety: Any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs
- History of caregiving: The history and nature of each parent's participation in providing care for the child
- Capacity for ongoing care: 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
- Stability and continuity: The effect on the child's well-being and development of changes to home, school, and community
- Significant relationships: 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
- Maximizing parenting time: 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
- Support of the parental relationship: 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
- Coparenting and dispute resolution: 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.
Do courts prefer joint legal custody?
Generally, yes. The court applies a rebuttable presumption that joint custody is in the child's best interests. This means that the court accepts this fact as true unless evidence is presented that proves it false. Notdomestic abuse has occurred between the parents.
Note that if domestic abuse has occurred between the parents, the presumption is flipped — the court will presume that joint custody is not in the child's best interests.
After custody is decided: understanding your rights
Can you still see your child if the other parent gets custody?
Even if you do not have sole physical custody of your child, you may be allotted a minimum of 25% of the child’s time if the court believes it is in the child's best interests.
However, if a non-custodial parent has a history of domestic violence witnessed by the child or a history of 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?
You can request that the court require all visits with the other parent to be supervised by a third party. It's a good idea to consult with a lawyer before doing so, as you will need to provide sufficient evidence that this is necessary. An attorney can help you gather the evidence needed.
Under what circumstances can custody be changed or modified?
You can ask the court to modify your current custody order if you can prove that it is no longer in the best interests of the child.
Under Minnesota Stat. 518.18, custody can be modified as long as the following conditions are met:
- It has been at least one year after the initial order was entered.
- It has been at least two years since the last modification motion was heard.
These waiting periods may be waived if any of the following conditions are true:
- Both parents agree to the change,
- The child is already integrated into the family of the parent seeking custody,
- There is unwarranted, persistent, and willful denial or interference with parenting time,
- One parent illegally relocates the child, or
- The child's present environment may endanger the child's physical or emotional health (or impair their development).
What should I do if the other parent isn’t following the court-ordered parenting time schedule?
You can seek the following courses of action:
- Mediation: Some custody orders require you to attempt to settle your disagreement outside of court first. Mediation can help resolve the issue, or at least provide valid reason for bringing the dispute to court.
- File a Parenting Time Assistance Motion: This motion asks the court to change a parenting time schedule, enforce your existing schedule, or grant 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 persistently 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. Instead, the court takes into account the child’s preference as just one of 12 "best interest" factors that the court must consider when determining custody. Because there is no specified age in the statutes, the judge determines if the child is old enough and/or emotionally 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 has decided the move is in the child’s best interest) to move with the child.
If this is your goal, we recommend consulting with a lawyer to build your case.
What if the other parent is trying to move my child out of state?
The other parent can only move your child out of state if:
- They have physical custody of the child, and
- They have your permission to move, or the court has ordered that the move is in the child's best interests.
Can a parent change a child’s last name without the other parent’s permission?
Under Minn. Stat. 259.10, both parents must be notified of the name change application, and you must prove to the court that the other parent was notified.
If the other parent objects, the judge will hold a hearing to decide. A name change is not guaranteed if it is contested. The judge will only approve the change if it determines that doing so is in the best interests of the child.
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):
- To access and receive copies of school, medical, dental, religious training, police reports, and other important records
- To access health or dental insurance information
- To be informed of the name and address of the child's school
- To be informed by school officials about the child's welfare, educational progress and status, and to attend school and parent-teacher conferences
- To be notified about an accident or serious illness of a minor child, including the name of the health care provider and the place of treatment
- To be notified if the child is the victim of an alleged crime, including the name of the investigating law enforcement officer or agency, unless the parent to be notified is the alleged perpetrator
- Reasonable access and telephone or other electronic contact with the child
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 can seek enforcement of a child support order. If you plan to do so, it's wise to consult with a lawyer.
If the parents have joint custody, does anyone pay child support?
In Minnesota, "joint custody" does not automatically eliminate child support.
Child support amounts are calculated using a model that ensures both parents contribute to the child's upbringing, proportional to their income and time spent with the child.
Support is calculated using the following factors:
- Gross Monthly Income: The total income of both parents before taxes.
- Number of Joint Children: How many children the parents share together.
- Parenting Time (Overnights): The number of court-ordered annual overnights each parent has.
- Health and Dental Insurance: The cost of premiums for the children's coverage.
- Child Care Expenses: Work-related or education-related daycare costs.
- Non-Joint Children: Credits for other children a parent is legally obligated to support.
- Spousal Maintenance: Any alimony being paid or received between the parties
These factors are applied through the Minnesota "Income Shares" model as defined in Minn. Stat. 518A.34 to ensure both parents contribute proportionally to the child's upbringing.
Frequently Asked Questions (FAQs) on Custody
Can I get custody of a child who isn’t mine?
Yes, you can file for custody of someone else’s child. This is called third party custody, and can be achieved in a few different ways, including:
- Guardianship
- Adoption
- Involvement in a Child in Need of Protection or Services (CHIPS) case
- Delegation of Parental Authority (DOPA)
- Designation of Temporary or Standby Custodian
This area of the law is complex, however, so it is highly recommended you speak with a lawyer to build your case.
How does domestic abuse affect custody?
If domestic abuse has occurred between the parents, the court presumes that joint legal custody is not in the best interests of the child. Only if enough evidence is presented to rebut that presumption will it be granted.
The court will also 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.
Can a parent who committed a violent crime get custody or visitation?
It's possible, but only if the court determines that doing so is in the best interests of the child. 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).
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
Legal custody vs. physical 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.
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 parents.
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: 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: 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: a status where the court has not made a set parenting time schedule yet, but may do so in the future.
- Specific parenting time: 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: an arrangement that does not allow one parent to have any parenting time with the child (also called “denied” parenting time).
What is a parenting plan?
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, but it can be as general or specific as you like.
What is an ex-parte order?
An ex-parte order, also called an emergency order, allows you to file a motion without having to notify the opposing party 14 days prior to the hearing date. This makes it possible to get into court sooner.
What is a custody evaluation?
A custody evaluation is sometimes ordered In contested custody matters. To run the custody evaluation, a custody evaluator is ordered by the court to gather information about both parents as well as the child. The evaluator conducts interviews, makes observations, and even makes home visits. Afterward, they 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. Child custody disputes can feel complex and overwhelming, but we'll help you to truly understand your options so you can choose the best path forward for you and your family.
About the author
This article is provided by DeAnne Dulas, a family law attorney who has spent the past 20 years focused exclusively on divorce, custody, and related family law matters. Legal outcomes depend on individual circumstances, and this information is for general educational purposes only.
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