Custody is an emotionally-charged issue, with a lot of uncertainty for parents and kids.

Topics in this podcast include the difference between physical custody and legal custody, joint custody as compared to sole custody, the "best interest of the child" factors and the key facts judges look toward in making custody decisions.

Run Time: 12:52

In examining the best interests of a child, the Court will examine 13 criteria, including:

• The wishes of the child's parent or parents as to custody;
• The reasonable preference of the child as to custody, if the court deems the child to be of sufficient age to express 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 of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custody arrangement is not in the best interest 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 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
• The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

Legal custody grants a parent the right to have a role in the educational, medical and religious decisions made on behalf of a child. There is a presumption in Minnesota that parents should be granted joint legal custody. This presumption may be overcome, however, by demonstrating that such an award does not serve the best interests of a child (if, for example, a parent experiences significant mental illness or has played no role in the life of a child).

Physical custody refers to the day to day physical location of children. The presumption in Minnesota is that one parent should have sole physical custody and the other should be awarded an appropriate amount of parenting time with the children. This presumption may be overcome, however, by demonstrating that such an award does not serve the best interests of a child - usually by showing that the parents have each played a significant role in a child's upbringing, get along relatively well, communicate respectfully with one another, have no history of domestic abuse and intend to remain living in close proximity (within the same school district) of one another. Some judges are much more open to an award of joint physical custody than others.

If one parent is awarded sole physical custody of a child, the other will typically receive an award of parenting time. Very often, such an award involves spending time with the children every-other weekend, one or two evenings per week, half of all holidays and non-school days during the academic year, and a number of weeks of uninterrupted vacation time during the summer months.

Our argument to the court was that the grandparents had “stepped into the shoes” of the father, who was an admitted alcoholic. Despite the fact that the grandparents had spent substantial amounts of time with their grandkids, mom and dad disputed their continued involvement in the lives of the children and wanted all time spent with the grandparents to be supervised.

Our clients were awarded one full weekend a month with the grandkids and additional time to take their grandchildren on vacation. None of the time was required to be supervised. This award was quite substantial, given the fact that most non-custodial parents are typically ordered to receive two weekends per month of parenting time, along with one weekday evening. The court clearly recognized that the stability of the children was critical in this case and that this ongoing relationship served their best interests.

Today, a party to a divorce in Minnesota must merely demonstrate that there has been an "irretrievable breakdown" in the marital relationship. One spouse must simply acknowledge as much, and the court will grant their request to dissolve the marriage. A relatively low threshold - and a tough pill to swallow for those who feel that there is no "justice" in their case unless the court takes into account marital misconduct.

Potential clients often ask, "Should I fight the divorce?" Yes, if you intend to do so outside of the legal arena through counseling or therapy. Once it is obvious that the marriage cannot be saved, your resistence should be limited to that which is necessary to obtain a favorable court order. Not wanting the divorce can be used as leverage against your spouse if they are anxious to conclude matters. Often, the impatient spouse will buy a quick resolution by making an extremely attractive settlement offer. This strategy should be balanced against overdoing it. If you are fighting the dissolution process out of anger or spite, you are likely to cause significant economic and emotional harm to you, your spouse and your children.