Custody and Parenting Time
In Minnesota, both parents have legal rights to their children, however the parent who doesn’t give birth may have to bring the issue before the Court to assert those rights. This parent should hire an experienced Minnesota family law attorney if they wish to assert their parental rights and be involved in their children’s lives and upbringing.
Minnesota’s parenting laws are gender neutral, which means the Court is not allowed to give a preference to a parent based upon their gender. If parents are unmarried, the birthing mother automatically has sole legal and physical custody under the law until the Court says otherwise. This is true even if the parents sign a Recognition of Parentage. The other parent will need to file a paternity and/or custody action to assert their parental rights.
If the parents are married and seeking a divorce, the issues of custody and parenting time must be resolved as part of the divorce action.
What is Custody?
Minnesota recognizes two types of custody: legal and physical. Legal custody is the right to make major life decisions regarding the upbringing of your minor child. These major life decisions include education, medical treatment, and the religious upbringing of the child. Some examples of legal custody decisions include choosing medical providers, which schools to enroll in, deciding on extra-curricular activities, allowing the child to obtain a driver’s license, and choosing your child’s religion. Legal custody in Minnesota can be either “sole” or “joint.”
“Sole legal custody” means that one parent has the right to make these decisions for the minor child without the other parent’s involvement. The parent awarded sole legal custody can make decisions on the child’s behalf without consulting or informing the other parent of such decisions.
“Joint legal custody” grants each parent an equal right and responsibility to be involved in the decision-making process for the child. There is a presumption in Minnesota that joint legal custody is in the best interests of a child, and that both parties will make these decisions together. However, this presumption can be overcome under certain circumstances such as domestic abuse, or if the parents have demonstrated a total inability to work together.
“Physical custody” refers to the residence, daily care, and control of the child. Generally, physical custody means which parent the child will reside with most of the time on a day-to-day basis. Physical custody in Minnesota can also be either “sole” or “joint.”
“Sole physical custody” means that the child will reside with one parent the majority of the time on a day-to-day basis. A simplified way of thinking of this concept is a parent awarded sole physical custody is the child’s “primary residence.” The parent not awarded sole physical custody can still be awarded parenting time with the minor child, which may include overnight parenting time.
“Joint physical custody” means that both parents will care for the children on a day-to-day basis. Many people conflate joint physical custody to mean an “equal” parenting time schedule, however, this is not always the case. Courts take into consideration numerous factors in attempting to craft a lasting arrangement that works for the parents and the child. When considering joint physical custody, a court will consider factors such as: the ability of the parents to cooperate with each other, the parents’ methods for resolving disputes regard decisions concerning the child’s lives, and whether it would be detrimental to the child if one parent were to have sole authority over the upbringing.
Unlike legal custody, there is no presumption in Minnesota that parties should share joint physical custody of their child. If one party is seeking joint physical custody of the minor child, they should be prepared to prove that their ability to co-parent and cooperate in raising the child.
What is Parenting Time?
It is important to note, physical custody is different from “parenting time,” which is the time a parent spends with the child regardless of custody labels. A parenting time order can address the child’s weekly schedule, transportation of the child between homes, and where the child will sleep at night. A parent who does not have physical custody still has a right to parenting time. Minnesota law presumes that a parent should have a minimum of 25% of parenting time with their child.
How do the Courts Determine Custody and Parenting Time?
Minnesota law empower the judge or referee to use their discretion in determining the best interests of the child based upon a list of factors outlined by statute. These factors are known as the “Best Interests” factors and they include, but are not limited to the child’s physical, emotional, cultural needs, special medical, mental health, or developmental needs of the child, the mental and physical health of the parents, the effect of arrangement on the child’s relationship with both parents, each parents’ history of caring for the child, and, when age-appropriate, the child’s preference.
In deciding custody and/or parenting time order, judges are tasked with making a difficult decision that strikes at the very core of a parent’s relationship with their child. It is critical to bring the court a clear, logical, and convincing argument that conforms with the law to ensure your desires for custody and parenting time are considered.
Get the Best Family Law Attorneys On Your Side
Even when parents agree to share custody of their children, it is still advised to work with a family law attorney who has plenty of experience with custody and parenting time in Minnesota family courts. Family law attorneys bring more than knowledge about the state’s laws; they have familiarity with a wide range of family situations and ideas for problem-solving co-parenting difficulties. In Court, an experienced family law attorney assists you in presenting a solid argument regarding the best interests of your children, whether you are advocating for sole or joint custody.
Messick Law PLLC has handled all kinds of family law cases, from amicable divorces to complex custody battles. They have years of experience as litigators, are AV Rated, and recognized as Rising Stars by SuperLawyers.com.