Best Interests Standard: The following are the factors the court considers when deciding legal and physical custody (these are commonly referred to as the "best interests factors"). 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:
(1) the wishes of the child's parent or parents as to custody;
(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
(3) the child's primary caretaker;
(4) the intimacy of the relationship between each parent and the child;
(5) 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;
(6) the child's adjustment to home, school, and community;
(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(8) the permanence, as a family unit, of the existing or proposed custodial home;
(9) 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 interest of the child;
(10) 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;
(11) the child's cultural background;
(12) 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 alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
(13) 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.
Custody Evaluation: The process of an independent third party assessing the parenting skills of each parent and making a recommending to the Court regarding who should have legal and physical custody of the minor children and what the parenting time schedule should look like. Some Counties have staff to complete this task. Other Counties do not have the funding to keep someone on staff and the parties must hire an independent evaluator. The process generally takes 90 to 120 days, but can take longer in complicated cases. There is always a cost associated with this process regardless of whether it is done by County staff or an independent evaluator.
Guardian ad Litem: An individual, corporation or agency appointed by the court for a party, or more frequently for a minor child whose parents are in the process of divorce, for the purposes of the litigation. The responsibility of the guardian ad litem (GAL) is to advocate for either the incapacitated adult or the minor child only during the litigation in which he or she was appointed. It does not require the GAL to be responsible for the physical needs of the individual.
Joint Legal Custody: Both parents have equal rights and responsibilities in making decisions regarding the child's upbringing, including education, health care, and religious training.
Joint Physical Custody: The routine daily care, control and the residence of the child is structured jointly between the parents.
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. The statutory presumption in Minnesota is for joint legal custody unless there is domestic violence between the parties.
Physical Custody: Sole physical custody means that one parent controls the routine daily care, control and the residence of the child or children. Joint physical custody means the parties jointly decide on the routine, daily care, control, and residence of the children. The statutory presumption is still in favor of sole physical custody to one parent, although several judges seem to be favoring joint physical custody . There is also a provision in our statutes for the parties to not designate physical custody but only to outline a parenting plan between the parties. This option can present some problems with respect to child support.
Joint Custody Factors: 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:
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.