Custody is one of the major issues (usually the top priority) involved in divorce and paternity cases. Because judges are afforded a great deal of discretion, and because every case is unique, it can be challenging to predict the outcome if the matter proceeds to trial. That is why our Minnesota custody attorneys are here to help.

Legal Custody

Legal custody involves the ability of a parent to play a role in the major decisions surrounding the upbringing of a child.

Life-altering educational, religious or medical dilemmas are contemplated within the definition of legal custody. Legal custody does not involve the day-to-day decisions involving the care of a child (such as whether it is appropriate to obtain a throat culture for an ill child), but rather addresses “big picture” issues (such as whether it is best for a child undergoing throat surgery to cure repeated illness).

The law presumes that both parents will share legal custody of a child (“joint” legal custody). That presumption can be overcome, however, if it is demonstrated that the parents have a rather tumultuous relationship.

About 98% of the time, parents are awarded joint legal custody of a child.

Physical Custody

Physical custody involves the day-to-day care of a child, and tends to define a child’s primary residence. Children typically spend a greater share of time with a parent who has been awarded sole physical custody.

The law presumes that one parent should serve as the sole physical custodian of a child. That presumption, however, can be overcome if it is demonstrated that both parents have a significant relationship with a child. In that situation, the parties may obtain an order for joint physical custody of a child.

Best Interest Factors

In determining what sort of custody award is appropriate (either physical or legal on a sole or joint basis), 17 different factors are balanced. Cumulatively, these elements are referred to as the “best interest of the child” standard.

One of the reasons that custody cases can be challenging is because there is no specific formula in place to determine the outcome. Rather, the decision is “factor-based,” leading to a wide range of possible outcomes. Therefore, it is crucial to enlist the services of our experienced custody attorneys in Minnesota for legal assistance throughout this complicated process.

In determining what custody arrangement serves the best interest of a child, the court will weigh the following:

  • Wishes of parents;
  • Wishes of the child (if of suitable age and maturity – there is no magic age);
  • Caretaking role each parent has undertaken in the life of the child;
  • Intimacy of the relationship among parent and child;
  • Interaction among the parent, child and family members;
  • Child’s adjustment to home, school and community;
  • Stability and continuity of each parent’s home;
  • Permanence of proposed custodial home;
  • Mental and physical health of the parents and child;
  • Capacity of parent to offer love, affection and guidance;
  • Any culture issues that may be present;
  • Effect on a child of acts of domestic abuse;
  • Disposition of each parent to encourage ongoing relationship between the child and other parent;
  • Ability of parents to cooperate in the rearing of child;
  • Methods parents have to resolve disputes that arise;
  • Whether it would be detrimental to the child for one parent to have sole authority over the child’s upbringing; and
  • Proximity of the residence of each parent.

The court is certainly free to take into account other factors as part of determining the best interest of a child.

Labels Are Less Meaningful

So often, parents get caught up custody labels. However, our child custody attorneys in Minnesota have found that the label has become less consequential in recent years.

It used to be that the amount child support paid by a parent was tied directly to the custody label. For that reason, litigants placed substantial emphasis on the labels themselves.

The child support statutes were amended in 2007, and placed renewed emphasis on the amount of time spent with a child, as opposed to the label attached to the relationship. Today, family court litigants spend more time talking about specific schedules, and less time arguing over labels.

Our expert custody lawyers in Minnesota are here to help you maintain the rights you deserve and protect your family.

Podcast: Custody Cases in Minnesota



Welcome once again everybody to the Family Law Show. This is Jason Brown. I’m one of the founding partners with the Brown Law Offices, PA, in the northwest suburbs of the Minneapolis / St. Paul metropolitan area.

Coming to you this week and talking with you about custody issues under Minnesota law, there’s no more emotionally draining issue than custody issues. A lot of folks tell us that they could care less about the financial issues involved in a divorce. Just let the chips fall in an appropriate fashion for their kids, and they’ll be happy. Frankly, that’s the role of the court in family court.

The Role of Judges

The role of the judge is to make sure that the interests of children are protected. Basically, they will let parties do as they wish when it comes to their assets and liabilities, but when it comes to kids, the courts are going to make sure that they are taken care of and that their interests are looked out for. In doing, so the court is going to divide custody into two distinct components.

Legal Custody

One is an award of legal custody, and the other is an award of physical custody. Let’s talk about those two concepts because a lot of folks need a bit of clarification on that.

When it comes to legal custody, what the court is looking at are the role that each parent will play in the major decisions that are made on behalf of a child. Things like major educational decisions, major medical decisions, decisions involving religious affiliation, and those kinds of things. Kind of the big picture, life altering decisions, private versus public school, Catholic versus Lutheran, are we going to have life-sustaining measures or are we going to terminate treatment and hope for the best?

Those types of things. We’re not talking about the day to day routine decisions, but the big picture. What I describe to folks a lot of time is this, that the legal custody is more of a warm and fuzzy concept. It gives someone who might otherwise be a non-physical custodial parent, someone who’s got a less than equal amount of access to the children, a sense that they have an important role to play, which they do, in the life of a child.

Now the presumption under Minnesota law is that the parents will be awarded joint legal custody, and it’s up to the parent who seeks an award of sole legal custody to prove that that is the appropriate way for legal custody to be granted in the case. It is very uncommon for a court to award one parent sole legal custody over a child, but we have had cases where the court has done just that.

Typically, they are cases involving individuals who get along like oil and water. Basically, we’re talking about couples who have no ability to communicate with each other whatsoever. Other cases might involve situations where there’s been overt acts of abuse or neglect upon a child or if there’s just some other issue that has arisen in a family that would not justify one parent playing a role in these major decisions.

With about 99% certainty, the court will grant a joint legal custody in the absence of these circumstances. If you’re a party who wants to dispute that, it’s up to you to prove that it’s not appropriate.

Physical Custody

On the other hand, an award of physical custody involves the day to day care of a child. Basically, it’s described as a child’s home base. Basically, where the child is going to reside primarily, go to school, spend the vast majority of their time, in particular, during the school week.

There are situations where parents can share joint physical custody and have a more or less 50/50 division of time. Sometimes that looks like parents having a week on, week off arrangement or a six and one arrangement where one week with one parent, one week with the other, and then one day in the middle of that week with the parent whose week it isn’t so that that parent doesn’t have to go a full week without seeing the kids. Other parents will do what’s called a 2-2-5-5 split every Monday, Tuesday with dad, every Wednesday, Thursday with mom, and then rotate every Friday, Saturday, Sunday.

Custody Presumptions

Now, joint physical custody is not the presumption under Minnesota law. There are some counties that are more apt to award joint physical custody, but typically what the court is going to look at there are couples who, despite the fact that they have their marital differences, can get along relatively well, live in relatively close proximity to one another, and basically have both played a key role in the upbringing of the children since birth.

Typically, if a parent has been a stay at home parent, and the other has been taking on that more traditional work role, the odds of them being awarded joint physical custody are significantly less. However, we’ve had cases where certainly the opposite has occurred where we’ve been able to successfully represent a client who’s been the more traditional working parent and obtain that joint physical custody award.

But the presumption under Minnesota law is not that the parties will share joint physical custody, but that one parent will have sole physical custody of the child subject to a reasonable amount of parenting time vested in the other parent.

Best Interest Factors

The way that a court determines whether an award of joint physical custody or sole physical custody is appropriate is by looking at a series of factors that have been set forth by the legislature. These 13 factors that are contained in the statute encompass what the court has to balance in figuring out what’s best for a particular child under the specific facts in front of the court.

The Wishes of a Child

What they’re going to look at include things like the wishes of the parents as to custody. They’re going to look at the reasonable preference of the child, if the court deems that child to be of sufficient age to express a preference.

Quite often I get asked, “My child is 15 years old, and my child is 13 years old, 11 years old, 10 years old. They’ve told me they want to live with me. How much does their opinion count?” The honest answer is that as the child gets older, their opinion carries more weight. But it depends upon the maturity of the child.

If a custody evaluator meets with a child and finds that child to have some very legitimate reasons for wanting to spend the vast majority of time with one parent versus the other, the evaluator’s probably going to give that child’s opinion a good deal of weight in rendering their recommendations.

On the other hand, if a child is wishy washy, doesn’t really express a preference or is relatively young, that opinion is not going to be given a good amount of weight.

By the time a child is 16 or 17, it seems the more common trend now is for courts to basically allow that child to go where they wish. The underlying assumption is that you’re not going to make a 17-year-old do something at they don’t want to do. Of course, there are exceptions in every case, but essentially as a child gets older, the more weight their opinion will be given. But the rule really is that there is no rule. It depends upon the maturity of the child. There is no specific age at which a child gets to decide.

Primary Caretaker

The third factor that makes up the best interest of the child standard involves the court looking at who has served as the primary caretaker for the child. We find the courts often spend a good deal of time assessing who has been there to get the child up in the morning, to put the child to bed at night, bathing, grooming, purchasing care of clothing, planning of meals, arranging for social interaction or alternative care.

All of these various items encompass the caretaking function associated with the child. Although they’re not supposed to, many courts put a greater amount of weight on the caretaking function. It’s awfully easy for a lawyer to go in and argue that, “Hey, look, your honor, we ought to maintain the status quo. This child has basically been in the care of mom or basically been in the care of dad since birth. Why would we want to go and change that now?”

Intimacy of Relationship

The court’s also going to look at the intimacy of the relationship between a parent and child along with the interaction between a parent and child. Now, these sound kind of similar, but the intimacy factor really kind of looks at things like how affectionate is a child toward their parent or how close are they? Do they confide in that parent? Whereas the interaction part of it looks at what types of things do they do while they are together? Do they spend time engaging in quality family activities? Do they go out? Are they engaged with one another? Those kinds of things.

Adjustment to Home School and Community

The court’s also going to look at the child’s adjustment to home, school, and community. Basically, looking at the environment that a particular parent can offer for a child. They might look at one school district versus another, if the parents are going to live apart. They might look at whether one parent is going to stay in the marital homestead or going to stay in the same school. Whether they’ll be close to friends and have access to those that they’re familiar with.

They’re also going to look at the length of time a child has lived in a particular environment. In other words, if a parent is going to stay in the marital home and a child has lived there their entire life and they’re 10 years old, there’s probably going to be some weight given to the fact that a disruption to that child’s sense of life and wellbeing would be detrimental. The court may want to maintain the status quo.

Other Factors

In terms of additional factors, the court will look at the mental and physical health of all of the parties involved. They will look at the disposition of each parent to encourage the other to engage in a relationship with the child. They’ll look at whether a parent has the ability to offer love, affection, and guidance for a child, any cultural issues that may be prevalent, and whether there’s been any acts of domestic abuse. Naturally, if there have been acts of domestic abuse, the court is less likely to award that particular parent physical custody.

Parenting Time Schedules

Well, once that decision is made, I already addressed the notion of a joint physical custody arrangement, and roughly 50/50 split of parenting time, but in the event that one parent is awarded sole physical custody, the other parent will be awarded a reasonable amount of parenting time.

Typically, that will involve what we call a routine access schedule, like every other weekend, one or two evenings per week. Typically, during the summer months, that amount of time will increase. Typically, it will also involve weekday overnights, whereas courts tend to like to see kids sleeping in the same bed each school night.

It will also involve extended vacation time during the summer, non-school days usually being divided equally, along with a rotating holiday schedule. The court’s order will also outline how transportation is to be chaired and a number of other provisions that sort of govern communication between the parties.

Those then are the factors and issues involved in a physical or legal custody case. We hope that you take something from this. If you have further questions about legal custody, physical custody, or what a routine or regular award of parenting time might be pursuant to Minnesota law, we do invite you to give us a call.