Child Custody and Parenting Time

Use this interview guide for an overview of child custody and parenting time issues, including jurisdiction, types of custody, and visitation.

  1. Jurisdiction: Uniform Child Custody Jurisdiction and Enforcement Act

  2. 1. Jurisdiction: Uniform Child Custody Jurisdiction and Enforcement Act

    Initiating Custody

    Minnesota court has jurisdiction to make an initial custody determination only if:

    a. Minnesota is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from Minnesota but a parent or person acting as a parent continues to live in Minnesota.  (home state: state in which child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.  If child is under six months, home state is the state of child’s birth); and

    b. A court of another state does not have home state jurisdiction, or a court of the home state of the child has declined to exercise jurisdiction on the ground that Minnesota is the more appropriate forum, and the following two factors are present:

        1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with Minnesota other than mere physical presence; and

        2. Substantial evidence is available in Minnesota concerning the child’s care, protection, training and personal relationships; and

        3. All courts having jurisdiction under the above two bases have declined to exercise jurisdiction on the ground that Minnesota is the more appropriate forum to determine custody; and

        4. Or, no court of any other state would have jurisdiction under the above three criteria.

    Exclusive, Continuing Jurisdiction

    Once a Minnesota court makes an initial custody determination or modifies a child custody determination of another state, it has exclusive, continuing jurisdiction until:

    a. A Minnesota court determines that the child, child’s parents, and/or person acting as parent do not have a significant connection with Minnesota and that substantial evidence is no longer available in Minnesota concerning the child; or

    b. Minnesota court or court of another state determines that the child, child’s parents, or person acting as a parent does not reside in Minnesota.

    Jurisdiction to Modify Custody

    A Minnesota court may not modify custody determination made by another state unless the Minnesota court has jurisdiction to make an initial custody determination and either of the following two additional factors is met:

    a. The court of the other state determines that it no longer has exclusive, continuing jurisdiction or that Minnesota would be a more convenient forum; or

    b. A Minnesota court or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do no presently reside in the other state.

    Temporary Emergency Jurisdiction

    A Minnesota court has temporary emergency jurisdiction if the child is present in Minnesota and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

  3. Types of Custody

  4. 2. Types of Custody

    In every custody dispute, the court must resolve the questions of which party will receive physical and legal custody of the children and whether physical or legal custody, or both, will be joint.

    Legal Custody

    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.

    Physical Custody

    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.

    Joint Custody

    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.

  5. Visitation (Parenting Time)

  6. 3. Visitation (Parenting Time)

    Rights to Parenting Time

    The court is required to grant the noncustodial parent visitation rights to enable that parent to maintain a child to parent relationship that is in the child’s best interests.  The courts hold that visitation is a parental right essential to the continuance of a parent-child relationship and should be denied only on persuasive evidence that visitation is not in the child’s best interest.

    See Minn. Stat. 518.175.

    Restrictions on Parenting Time

    The statute provides that the parenting time of a noncustodial parent must be restricted or denied if the court finds that parenting time is likely to endanger the child’s physical or emotional health or impair the emotional development of the child.  The court may impose restrictions on parenting time only after a hearing.

    a. Supervised visitation:  If the court finds sufficient danger exists to limit parenting time, it has a number of options available to it.  It may restrict parenting time as to the time, place, duration, or supervision or it may deny parenting time entirely. The court must consider the child’s best interests in making an order relating to parenting time and must specifically consider the child’s age and the child’s relationship with the noncustodial parent.

    See Minn. Stat. 518.179.

    Independence of Child Support and Parenting Time

    The custodial parent may not deny parenting time because the noncustodial parent cannot pay child support.  The custodial parent must pursue appropriate remedies if child support is not paid.

    See Minn. Stat. 518.175.

    Removal of Child from State by Custodial Parent

    If the noncustodial parent has been granted visitation rights, the custodial parent may not move the residence of the child to another state unless (a) the noncustodial parent consents to the move or (b) the court approves the move.  The court will not approve the change of residence if the purpose of the move is to interfere with the noncustodial parent’s visitation rights.  Also the court will not approve a change of residence if the move will seriously impair the child’s visitation with the noncustodial parent and siblings and if there is no evidence that the move will improve the child’s financial circumstances.  The key question is the best interests of the child.  (518.175 sub 3(a)).  Burden of proof is on the parent requesting the move, unless that person is a victim of domestic abuse by the other parent.

    Grandparents’ Visitation

    The court must find that the visitation rights would be in the best interests of the child and would not interfere with the parent and child relationship.  The statute provides for grandparents visitation in three situations:

        a. When the parent who is their child is deceased;

        b. When there is a proceeding for dissolution, custody, legal separation, annulment or parentage;

        c. When the child has resided with the grandparents for a period of twelve months or more.

    See Minn. Stat. 257C.08.

    Parenting Time Expeditor

    Upon the request of either party, the parties’ stipulation, or the court’s own motion, the court may appoint a parenting time expeditor to resolve parenting time disputes between the parties.  The purpose of a parenting time expeditor is to resolve parenting time disputes by enforcing, interpreting, clarifying and addressing circumstances not specifically addressed by an existing parenting time order, and if appropriate, to determine whether the existing order has been violated.

    See Minn. Stat. 518.1751.