What You Need to Know about Minnesota Child Custody

March 05, 2011 (Press-News.org) Child custody issues have a daily impact on thousands of Minnesota families. For anyone who is going through a divorce or is otherwise involved in a custody action, understanding the framework set out in Minnesota's statutory code is essential. While only a qualified attorney can fully assess your case and advise you on the best individualized legal options, learning the basics is the first step in securing a custody arrangement that works for you and your children.

The Different Types of Child Custody

In Minnesota, there are two types of child custody: legal custody and physical custody. Physical custody is a legal term of art that means the right to make decisions pertaining to a child's everyday life. A party with physical custody typically lives with the child or decides where the child lives, and has the normal parental responsibility of determining how the child spends his or her day. Legal custody, on the other hand, is not such a familiar concept. The right to make broader, less tangible parenting decisions falls under the umbrella of legal custody. Such decisions include determining what kind of religious instruction the child receives, choosing a school, and picking medical treatment options for the child.

There is another important distinction between "sole" and "joint" custody. Of course, even those unfamiliar with the legal code may know that joint custody indicates an arrangement in which parents (or other guardians) share custody, whereas a parent with sole custody enjoys an exclusive right to make decisions. It becomes more complicated, however, in considering the possible variations when these terms are applied to the two types of custody. Any combination is possible; for example, a court-ordered arrangement may grant one parent sole physical custody, but allow both parents input in big decisions through joint legal custody. In addition, each child in the family can have an entirely different custody arrangement.

Regardless of the legal and physical custody arrangements, visitation, or "parenting time" as it is known in Minnesota, is a separate issue that may add another wrinkle. Parenting time is simply the time a non-custodial parent has with a child. In disputed cases, the court usually sets up a schedule for visitation.

Other Considerations

Custody can become an issue in a number of situations. The most common is when parents file for divorce or a legal separation, but child custody can also be disputed in other instances, like when a child is being taken care of by a non-parent or when a child becomes involved with the juvenile court system.

If parents are able to agree on a custody arrangement, normally they will file a document called a "stipulation" and the court will defer to their judgment. However, when custody is contested, the case will go either to Family Court or Juvenile Court, depending upon whether it is a divorce or a child protection case.

Child custody laws vary by state, but in Minnesota, the child must have been living in-state with a primary care giver for at least six months before a case can proceed (there are emergency exceptions, however). Ultimately, a court will decide custody arrangements based on what is determined to be in the best interests of the child; many factors can play into this determination, and evidence is likely to be included on each parent's time availability, relationship with the child and other relevant considerations.

Since child custody is a state law issue, cases in which parents and children reside in different states become very complex. Minnesota statute allows for cooperation between local courts and the courts of other states and sets up provisions allowing for the sharing of testimony and other evidence across state lines. A family law attorney is in the best position to offer advice on the possible venues for filing your custody case.

Looking Ahead

Custody law is constantly evolving, and changes may be on the horizon in Minnesota. New proposed legislation is aimed at creating more equality between parents in terms of time spent with the children.

The recently introduced bill aims to alter the definition of joint physical custody as well as change how the courts must view custody cases. Specifically, House Bill 69, introduced by Rep. Steve Drazkowski, states that when "parents cannot reach agreement on a parenting arrangement, it is the specific intent of Minnesota law that the parents have a right to a rebuttable presumption of equal time with their children."

To overcome the presumption, one parent must show that awarding joint physical custody would cause substantial harm to the children by clear and convincing evidence. Once the presumption is overcome, the court would then use the best interest standard to determine custody arrangements.

Getting Help

Securing a custody arrangement can be a complicated, stressful undertaking. But, it is not something you have to do alone. An experienced attorney can guide you through the process, file necessary paperwork with the court, and put together the strongest case possible. When it comes to something as important as your kids, the assistance of a professional is a must. Contact a qualified attorney, and you can be on your way to a favorable custody arrangement.

Article provided by Kathleen M. Newman & Associates, P.A.
Visit us at www.kathynewmanlaw.com