How is Custody Decided?

Custody of your minor children can be a very difficult issue. Generally speaking, both parents are heartsick at the thought of not having their children with them every day. The children are equally distraught at the thought of not seeing both parents every day. When a family is broken, things must change. The objective should be to make those changes so they have the minimum possible negative impact on the children. The very best thing you can do for your children is to put your hard feelings aside, at least where they will impact the children, and try to work out an arrangement that will meet everyone’s needs.

If the issues cannot be resolved and the court needs to make the decisions, these are the legal names and the related factors the court considers:

  1. Legal Custody: Sole legal custody means one parent has the right to determine the child’s or children’s upbringing, including education, health care, and religious training. Joint legal custody means both parents have equal rights and responsibilities in making these types of major decisions.
  2. Physical Custody: This is the routine daily care, control and the residence of the child or children and it can be solely with one parent or structured jointly between the parents.
  3. Factors the court considers when deciding legal and physical custody, commonly referred to as the “best interest factors:”
    • the wishes of the child's parent or parents as to custody;
    • the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
    • the child's primary caretaker;
    • the intimacy of the relationship between each parent and the child;
    • the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
    • the child's adjustment to home, school, and community;
    • the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
    • the permanence, as a family unit, of the existing or proposed custodial home;
    • the mental and physical health of all individuals involved; except that a disability, as defined in Minnesota Statutes, section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child;
    • the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
    • the child's cultural background;
    • the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in Minnesota Statutes, section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual who is alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
    • except in cases in which a finding of domestic abuse as defined in Minnesota Statutes, section 518B.01, has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

The court may not use one factor to the exclusion of all others and the primary caretaker factor may not be used as a presumption in determining the best interests of the child.

At the present time, the statutory presumption is that it is in the child’s best interests for one parent to have sole physical custody. However, there seems to be trend developing in the courts in favor of joint physical custody if there is any chance at all of making a joint custodial arrangement work. A “statutory presumption” can be overcome.

In addition to the factors listed above, where either party wants joint legal or joint physical custody, the court also considers the following relevant factors:

  1. the ability of the parents to cooperate in the rearing of their children;
  2. methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;
  3. whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and
  4. whether domestic abuse, as defined in Minnesota Statutes, section 518B.01, has occurred between the parents.

The court must use a rebuttable presumption that upon the request of either or both parties, joint legal custody is in the best interests of the child, except if domestic abuse, as defined in Minnesota Statutes, section 518B.01, has occurred between the parents. This means that the court presume that it is in the child’s best interests for the parents to share joint legal custody, unless one parent can convince the court that it simply will not work. The rational in favor of joint legal custody seems to be that our society wants both parents to be engaged in important decisions about the child’s life.

How Much Will a Divorce Cost? It is very expensive to fight in the legal system, especially in Family Court, and really sad thing about it is that nobody wins in Family Court. Even if you do win the issue you are arguing about, it will have cost you in terms of money, emotion and, sometime, the relationship with your children.Generally speaking, you will have some control over how much your legal proceeding costs you, but not all the control. For example, the opposing party can suck you into a fight you don't want and can't afford to fight. When that happens, you will have some decisions to make. You will either have to engage in the fight or give in on some or all of the issues. Only you will be able to decide how important each issue is to you.You can help control the cost by being organized and responding to your attorney in a timely manner when your attorney asks you for information or asks you to accomplish some task. You also need to be aware that most attorneys bill according to the time spent on your file. Therefore, each telephone call, each e-mail and each letter is going to cost you money in addition to the time the attorney spends considering the legal strategies that will best serve your needs, drafting documents and attending court appearances or mediation.Each case is unique, so there is no way any honest and ethical attorney can tell you what the entire case is going to cost. The best we can do is give your best "guesstimate" based on our experience with similar cases.

More Information on Child Custody in Minnesota

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