Legal custody means the right to determine the child’s upbringing, including education, health care, and police reports, religious training. If the parents have joint legal custody, they have equal rights and responsibilities over these matters.
See Minn. Stat. 518.003.
The parent with physical custody has control over the routine daily care of the child and has the residence of the child.
See Minn. Stat. 518.003.
1) Joint legal custody: There is a rebuttable presumption that upon request of either party, joint legal custody is in the best interests of the child.
2) Joint physical custody means that the routine daily care and control and residence of the child are structured between the parties. The statute does not precisely define this term.
3) Standards for joint custody: If joint legal or joint physical custody is sought, the court examines the following additional factors:
i. The ability to cooperate in the rearing of their children;
ii. Methods of resolving disputes and willingness to use those methods;
iii. If it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and
iv. If domestic abuse (518B.01) has occurred between the parents.
Equal Access to Information and Records
Both parents have equal access to certain important records and information concerning the child, regardless of whether physical or legal custody is sole or joint. (Minn. Stat. 518.17) Records include: School, medical, dental, religious training, police reports, and more.
Determination of Custody
The Court must consider the best interests of the child. The court must consider and evaluate all relevant factors to determine the best interests of the child, including the following:
1) A child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
2) Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
3) The reasonable preference of the child, if the court deems the child to be sufficient ability, age, maturity to express an independent, reliable preference;
4) Whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implication of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;
5) Any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
6) The history and nature of each parent’s participation in providing care for the child;
7) 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;
8) The effect on the child’s well-being and development of changes to home, school, and community;
9) 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;
10) 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;
11) Except in cases in which domestic abuse as described in clause (4) 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
12) 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.
See Minn. Stat. 518.17.
Modification of Custody
The moving party has the burden of establishing a prima facie showing that grounds exist to change custody. The evidence must establish that a significant change of circumstances has occurred from the time when the original or amended custody order was issued and that the change endangers the child’s physical or emotional health or the child’s development. A court may not grant a motion for custody change without granting the party opposing the motion an evidentiary hearing at which witnesses may be cross examined. The following elements must be shown for a modification of custody:
1) A change in circumstances of the child, custodian or other parent;
2) That a modification is necessary to serve the best interests of the child;
3) That the child’s present environment endangers his physical or emotional health or emotional development; and
4) That the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.
See Minn. Stat. 518.18.
Custody by De Facto Custodians and Interested Third Parties
1) De Facto Custodian (Minn. Stat. 257C.01): an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a “lack of demonstrated consistent participation” by a parent for a period of (1) six months or more if the child is under three years of age, or (2) one year or more if the child is three years of age or older. Neither the six month or one year periods of residence need to be consecutive.
i. This section does not include an individual who has a child placed in the individual’s care by a custody consent decree, a court order or voluntary placement agreement, or adoption.
2) Interested Third Party (Minn. Stat. 257C.01): an individual who is not a de facto custodian but who can provide that at least one of the factors listed in section 257C.03 subd. 7(a) required for an interested third party to obtain custody is met. To establish that an individual is an interested third party, the individual must show by clear and convincing evidence that one of the following factors exists:
i. The parent has abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent;
ii. Placement of the child with the individual takes priority over preserving the day-to-day parenting-child relationship because of the presence of physical or emotional danger to the child, or both; or
iii. Other extraordinary circumstances.
Guardian ad Litem
In all proceedings for child custody, dissolution or legal separation where custody or parenting time with a minor child is at issue, the court may appoint a guardian ad litem to represent the interests of the child. The function of the guardian ad litem is to advise the court with respect to custody and parenting time.
See Minn. Stat. 518.165.