Custody in Minnesota.

Decisions against where the child lives

Minn. Stat. sec. 518.003, subd. 3. 'Legal custody' means the right to determine the child's upbringing, including education, health care, and religious training. 'Joint legal custody' means both parents have equal rights and responsibilities, including the right to participate in major decisions about education, health care and religious training. 'Physical custody and residence' means the routine daily care and control and the residence of the child. 'Joint physical custody' means the routine daily care and control and the residence of the child is structured between the parties. Separately, subd. 5 defines 'parenting time' as the time a parent spends with a child 'regardless of the custodial designation' – so parenting time is not tied to the custody label.

What the judge must weigh

518.17 CUSTODY AND SUPPORT OF CHILDREN ON JUDGMENT. Subdivision 1. Best interests of the child. (a) In evaluating the best interests of the child for purposes of determining issues of custody and parenting time, the court must consider and evaluate all relevant factors, including:

1. (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. (2) any special medical, mental health, developmental disability, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
3. (3) 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;
4. (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 implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs;
5. (5) any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;
6. (6) the history and nature of each parent's participation in providing care for the child;
7. (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. (8) the effect on the child's well-being and development of changes to home, school, and community;
9. (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. (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. (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. (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.

(b) Clauses (1) to (9) govern the application of the best interests of the child factors by the court: (1) The court must make detailed findings on each of the factors in paragraph (a) based on the evidence presented and explain how each factor led to its conclusions and to the determination of custody and parenting time. The court may not use one factor to the exclusion of all others, and the court shall consider that the factors may be interrelated. (2) The court shall consider that it is in the best interests of the child to promote the child's healthy growth and development through safe, stable, nurturing relationships between a child and both parents. In determining custody, the court must consider the best interests of the child and must not prefer one parent over the other solely on the basis of the gender of the parent. (3) The court shall consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child's needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures. (4) The court shall not consider conduct of a party that does not affect the party's relationship with the child. (5) Disability alone, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child. (6) The court shall consider evidence of a violation of section 609.507 in determining the best interests of the child. (7) There is no presumption for or against joint physical custody, except as provided in clause (9). (8) Joint physical custody does not require an absolutely equal division of time. (9) The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. In determining whether the presumption is rebutted, the court shall 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. Disagreement alone over whether to grant sole or joint custody does not constitute an inability of parents to cooperate in the rearing of their children as referenced in paragraph (a), clause (12). (c) In a proceeding involving the custodial responsibility of a service member's child, a court may not consider only a parent's past deployment or possible future deployment in determining the best interests of the child. For purposes of this paragraph, "custodial responsibility" has the meaning given in section 518E.102, paragraph (f).

What the child wants

No age. Sec. 518.17, subd. 1(a)(3): '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.' One factor of twelve, and the judge must explain in the findings how it affected the outcome. Sec. 518.175, subd. 2 mentions age eight, but for a different purpose – on a parent's request the court may inform a child eight or older of the rights of the child and each parent under the order. That is a notice provision, not a preference rule.

Where there has been violence or abuse

Two mechanisms. Sec. 518.17, subd. 1(a)(4) makes domestic abuse a mandatory best-interest factor, and requires the court to weigh '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.' Sec. 518.17, subd. 1(b)(9) creates the rebuttable presumption that joint legal custody or joint physical custody is not in the child's best interests where domestic abuse as defined in sec. 518B.01 has occurred between the parents. Subd. 1(a)(11) removes the 'friendly parent' factor entirely in domestic abuse cases. Sec. 518.1705, subd. 6(b) bars the court from requiring a parenting plan with joint legal custody or non-judicial dispute resolution where it finds acts of domestic abuse, physical or sexual abuse or a pattern of emotional abuse of a child, or willful abandonment. Sec. 518.175, subd. 1a requires the judge to consider an existing order for protection when a parent asks for supervised parenting time, and subd. 5(d) requires a hearing at the earliest possible time on specific allegations of danger.

The parenting plan

No – optional, but powerful when both parents want one. Minn. Stat. sec. 518.1705, subd. 3(a): 'Upon the request of both parents, a parenting plan must be created in lieu of an order for child custody and parenting time unless the court makes detailed findings that the proposed plan is not in the best interests of the child.' Subd. 2(a) requires three things in every plan: a schedule of the time each parent spends with the child, a designation of decision-making responsibilities, and a method of dispute resolution. If both parents do not agree to a plan the court may create one on its own motion – but must not do so if it finds a parent has committed domestic abuse against a parent or child who is a party to or the subject of the case (subd. 3(b)), and must not use alternative terminology unless the parties agree to it. Subd. 4 requires the final judgment to translate any alternative terms back into joint or sole legal and physical custody, solely for enforcement. If no plan is created, custody and parenting time are ordered under secs. 518.17 and 518.175 or sec. 257.541 (subd. 3(e)).

Mediation

Not mandatory by statute, and there is a hard safety exception. Sec. 518.619, subd. 1: where the petition shows custody or parenting time is contested, 'the matter MAY be set for mediation.' Subd. 2 is the exception: 'If the court determines that there is probable cause that one of the parties, or a child of a party, has been physically or sexually abused by the other party, the court shall not require or refer the parties to mediation or any other process that requires parties to meet and confer without counsel, if any, present.' Mediation is private and confidential (subd. 5), the mediator has no coercive authority (subd. 1), and an agreement is not enforceable unless the parties and counsel consent to presenting it and the court adopts it (subd. 7). Many Minnesota counties require some form of alternative dispute resolution by local rule, so check with your district court.

If the court appoints someone to look into it

Two statutes. Sec. 518.167 (investigations and reports): in contested custody proceedings, and in others if a parent or custodian requests, the court may order an investigation and report by the county welfare agency or department of court services, which may charge a fee. The report must state each party's position, consider and evaluate every sec. 518.17, subd. 1 factor with a detailed analysis, state the investigator's recommendation and reasons, and reference dispute-resolution options. Who pays (subd. 5): 'The court shall order all or part of the cost of the investigation and report to be paid by either or both parties, based on their ability to pay,' with anything the parties cannot pay borne by the county agency – and the court may not order costs against a party receiving public assistance or qualified legal services, or whose annual income is below the federal poverty line. Sec. 518.165 (guardians ad litem): appointment is permissive in any custody or parenting time case, and MANDATORY 'if the court has reason to believe that the minor child is a victim of domestic child abuse or neglect.' Fees under subd. 3 follow the same ability-to-pay and poverty-line protections, with the State Guardian Ad Litem Board covering what parties cannot pay.

Changing the order

Minn. Stat. sec. 518.18, and there are two waiting periods. Paragraph (a): unless the parties agree in writing, no motion to modify a custody order or parenting plan may be made earlier than one year after the decree. Paragraph (b): once a modification motion has been heard – granted or not – no subsequent motion may be filed within two years of that decision on the merits, again unless the parties agree in writing. Paragraph (c) lifts both time bars where the court finds persistent and willful denial of or interference with parenting time, or has reason to believe the child's present environment may endanger the child's physical or emotional health or impair emotional development. Paragraph (d) is the substantive test for changing the child's primary residence: facts that arose since the prior order or were unknown to the court, a change in the circumstances of the child or the parties, and modification necessary to serve the child's best interests – and the court must keep the existing arrangement unless one of five things is true: the parties previously agreed in a court-approved writing to apply the plain best-interests standard; both parties agree to the change; the child has been integrated into the moving party's family with the other party's consent; the present environment endangers the child's physical or emotional health or impairs emotional development and the harm of change is outweighed by the advantage; or the court denied a move and the primary custodial parent relocated anyway. Parenting time itself is easier to change – sec. 518.175, subd. 5(b) allows modification whenever it serves the child's best interests, so long as it does not change the child's primary residence.

If you were never married

This is the biggest difference in Minnesota, and it is not subtle. Minn. Stat. sec. 257.541, subd. 1: 'The biological mother of a child born to a mother who was not married to the child's father when the child was born and was not married to the child's father when the child was conceived has SOLE CUSTODY of the child until paternity has been established under sections 257.51 to 257.74, or until custody is determined in a separate proceeding under section 518.156.' Subd. 2: if paternity has been acknowledged under sec. 257.34 and established under secs. 257.51-257.74, the father's parenting time or custody is determined under secs. 518.17 and 518.175. If paternity has been established but not acknowledged, the father may petition for parenting time or custody in the paternity case or in a separate sec. 518.156 proceeding. Subd. 3: where paternity has been recognized under sec. 257.75 (the Recognition of Parentage form signed at the hospital), the father may petition in an independent action, the proceeding is treated as an initial custody determination under sec. 518.17, and a custody and parenting time action may be commenced without a separate adjudication of parentage.