There are two type of custody under Minnesota law: (1) physical custody; and (2) legal custody. Physical custody involves the day to day care of a child, while legal custody involves key decisions concerning a child's education, healthcare and religion. The "best interest of the child" standard applies.

Child custody is a complex issue. When parents dissolve a marriage, if they can’t agree on whom the children will live with, then the court must decide. How is that determined? Several factors are considered.

•    The most important concerns are the interests of the child. Historically, that weighted a court’s decision in favor of the mother. In recent years, gender equity has shifted legal priorities.
•    If either parent relinquishes custodial rights or requests the other parent have sole custody, then that is considered.
•    Where things get sticky is when both parents insist on having sole custody. In that case, the court must settle the matter. Often, the decision boils down to which parent is better able to provide for education, medical attention, a suitable lifestyle, and connection to the family religion.

Factors include:

◦    Finances – Which parent has the better job, most stable employment, and/or highest income or savings?
◦    Living Situation – Has either parent remarried, or is there another romantic partner in the picture? What kind of living conditions will the children be subjected to? Has one of the parents moved out of the area?
◦    Religion – Who is better able to provide stable religious training? If parents are of different religions, have they chosen to educate the children in one religion over the other? If one parent is religious, and the other isn’t, the court may consider that in light of other factors.
◦    Dangers – Has either parent been convicted of a crime or abused drugs or alcohol? Are there other concerns, such as a history of abusive behavior or a volatile home environment?

Courts rarely award legal custody to step-parents; however, it does happen. All things are considered in light of the best interests of the child.

Are you fighting for custody of your children? Contact an experienced Minnesota custody lawyer at 763-323-6555 for a private, confidential consultation.

In the months or years following a divorce, as life situations change for parents and children, renegotiations of child custody and visitation agreements are quite common. However, if you enter into negotiations ill-prepared, you could end up wasting a lot of time and money while making it even more of a challenge to renegotiate down the road. Here are five big mistakes people often make during child custody/visitation renegotiations, and how to avoid them.

1. Offering no change of circumstance

Remember, the court has previously determined child visitation and custody rights for specific reasons, taking certain factors into account. If you ask your ex or a judge for a change in these rights without offering clear evidence that these deciding factors have changed, your request to renegotiate is likely to fall flat.

2. Failure to abide by the current agreement

If you have withheld visitation from the other parent without just cause, or if you have disobeyed any court order related to custody and visitation, you’re coming to the table with two strikes already against you. Neither your ex nor a judge will look favorably on your request to change the terms of custody if you’ve not been showing respect for the current terms.

3. Failure to clarify exactly what you want in concrete terms

If you are unhappy with your current child custody agreement, chances are it’s because you failed to be specific about terms the first time around. (For example, if you didn’t address who gets the kids during certain holidays, that lack of clarity might now be a point of contention with your ex.) Custody renegotiation is a perfect time to fill in some of those gaps; if you don’t tie up loose ends, you’re wasting an opportunity.

4. Using renegotiation (and the kids) as a tool for vengeance

In particularly contentious divorces, one parent might be tempted to extend the custody battle as a way of getting back at the other. This is a bad idea because it turns the children into pawns in your personal dispute. Since the court’s goal is the best interest of the children, anything that demonstrates you are not acting in their best interests will backfire on you. Just don’t do it.

5. Not seeking legal representation

Child custody is a nuanced and tricky business. If you attempt to renegotiate without the help of a skilled attorney, you’re likely to be just as unhappy with the outcome than you were the first time. Always seek professional legal counsel before trying to renegotiate child custody and visitation agreements.

Divorce is arguably harder on children than it is on adults, particularly when the divorce necessitates a move. If the children of divorce are forced to switch schools, they must leave behind their friends and favorite teachers. This can be a challenge for even the most outgoing children. Thankfully, there are many ways you can help your kids navigate this difficult transition:

1. Enroll your kids in activities and sports outside of school.

Sports teams and other extracurricular activities are great for introducing your children to their potential new best friends. Little League, for example, will allow your kid to meet a whole new group of other kids who share the same interest. By the time school starts in the fall, your kids will have a group of friends eager to help them transition to their new school district.

2. Introduce them to the school during off hours.

A new school environment can be very intimidating for kids. Ask one of the school’s administrators if your kids can visit their new school when no other children are there. This will prevent them from feeling lost and helpless on the first day of school.

3. Avoid the bus for the first few days.

The school bus can be a scary place for kids, especially when they don’t know anybody on their route. Skip this anxiety-inducing orientation by dropping your kids off at school in the morning and picking them up in the afternoon. If this is not possible, try to get in touch with other families on the bus route before school begins.

4. Help your kids keep in contact with their old friends.

Thanks to social media and the internet, it is easier than ever to stay in contact with loved ones from afar. Encourage your kids to communicate with their friends online, and if possible, arrange for them to get together during the weekend.

5. Talk to your kids about the transition.

Sometimes, the easiest way to help your children is through simple communication. Listen to any issues they may have, and work with them to find the best possible solution.

Child custody exchanges are outlined in the custody agreement issued by the court. They are generally routine, taking place at the same time and place and on a regular schedule. If one parent regularly refuses to let the other parent take the children at these court-appointed exchange times, that parent could face contempt of court charges. But there are exceptions.

One such exception is if your spouse shows up for the exchange appearing to be drunk or high. If that is the case, then you’ll want to protect your children.

First, note the behavior that causes you to believe your spouse is drunk or using drugs. Is he or she driving a vehicle while under the influence? If so, that is obviously a serious situation that could endanger your child’s life. You should call your local law enforcement agency to report the violation.

If your spouse is not the driver, but you suspect he or she may be drunk or high, then you’ll have to weigh carefully whether you feel that your children are in danger. If so, you do not have to let your children go with the spouse under the influence. If your spouse has a history of abuse or has been arrested in the past for violence, then that history increases the potential danger to your children. You should call law enforcement and be prepared to explain why you are not allowing the exchange to take place.

Police officers are trained to administer on-the-spot substance tests to determine if an individual is violating any laws. Be prepared to let your children go with your spouse if the police give the go ahead.

If your spouse is determined to be drunk or high, he or she may be arrested or given a warning, depending on the severity of the offense. If an arrest occurs, you have the right to request a copy of the arrest report for your custody battle. Be sure to call your attorney as soon as the situation permits.

Perhaps you just received a transfer offer to another state from your employer with a significant pay raise and even more opportunities for advancement. Or maybe you and a business partner (or new boyfriend or girlfriend) want to leave the area for a change of pace. But if you are divorced, and you have joint custody of your child, what should you do? How will leaving Minnesota affect your child custody arrangements?

In Minnesota, the courts do not let a parent leave the state unless the other parent gives his or her permission. However, you might obtain a court order that permits the move. When a parent submits a request to move, the court will consider numerous factors before granting permission, such as:

•    Financial concerns;
•    Whether the moving parent is the primary caregiver;
•    The reason for relocating, especially if the purpose of the move is to hinder the child’s relationship with the other parent;
•    How the move will affect the child, including his or her age, medical needs, and education and special needs;
•    What the child wants, depending on his or her age;
•    The distance of the move;
•    Whether the move will enhance the quality of life for the parent and the child;
•    The child’s overall welfare and safety;
•    The status of the parent’s relationship with his or her son or daughter; and
•    Whether the parent will be able to continue that relationship out-of-state and under what circumstances.

The parent who wants to move must prove that his or her reasons are in the best interests of the child. Failing to adhere to these guidelines could justify an immediate order changing parental custody until the court schedules a hearing. All that said, if the parent is leaving due to domestic violence, then the burden of proof to prohibit the move falls on the opposing parent.

The parent who leaves will need to be willing to adjust the visitation schedule to accommodate the move as well as subsidize additional transportation costs. However, the judge will generally place a high priority on the child’s need for regular contact with both parents.

Maybe you just separated from your spouse, and you’re confused about how to share custody this Thanksgiving. Or perhaps you suspect the other parent has violated your custody arrangement by planning a trip to his or her parents’ home for the holiday. In either case, you’re feeling stressed out and confused about how to react.

Thanksgiving sparks challenges for many families, even those not embroiled in child custody disputes. With good planning, however, you can create a fun experience for your children and enjoy the holiday. Ideally, you want to extend this sense of grace and gratitude. As Robert Caspar Lintner once observed, “Thanksgiving was never meant to be shut up in a single day.”

Here are four strategies.

  1. Be creative and flexible with your calendaring

Holidays notoriously spur calendar fights, even among the happily married. Grandparents, for instance, famously jockey over who gets to see the grandkids, when, and under what circumstances. Fortunately, you’re not helpless. Here’s how to calendar better:

  • Review your custody arrangement. What is required of you and of the other parent? Knowing these ground rules helps you negotiate. Speak with your attorney if you’re confused or unsure of the rules.
  • Reach out. If you’re on good terms, meet with the other parent (in person or virtually) to negotiate scheduling concerns.
  • Use scheduling apps to stay organized and in communication.
  • Be empathetic. Focus on the other parent’s feelings and needs. What does he or she want, and why? By attending to what’s motivating the other person, you’ll be a better negotiator.
  • Look for win-win solutions. There’s only so much time in a day. Still, you can “expand the pie.” Maybe, for instance, you let your ex take the kids for Thanksgiving in exchange for a special vacation “weekend with dad” in January.
  1. Identify and meet your needs.

Parents struggling with custody often neglect self-care. Don’t! Remember the “airplane rule” for parents – you must put on your own oxygen mask before you help your child with his or hers. Spend a day at the spa de-stressing with massages and facials, or plan a night out with friends in town for the holidays. Children benefit when their parents are healthier and less stressed, so don’t feel guilty about taking time to take care of yourself.

  1. Be positive and expect the unexpected.

No matter how much effort you put into planning for the holidays, there’s only so some control you have. As President Einsenhower famously said: “In preparing for battle I have always found that plans are useless.”

The unexpected is okay. If you burn the turkey, laugh about it and make the holiday memorable by ordering Chinese instead. If your co-parent changes plans on you last-minute, try to see it as an opportunity to celebrate Thanksgiving twice—start a new family tradition called “Thanks Again”!

  1. Maintain a support system.

When dealing with a custody dispute or tough divorce, it’s natural to feel lonely, even despondent, over the holidays. Surround yourself with people who love and encourage you. Get help with your parenting responsibilities. Recruit your older kids to pitch in.

In recent months, the legislature passed (and the governor signed into a law) a bill that amends Minnesota’s custody standards. In addition to a revised “best interest of the child” standard, judges must now apply the relevant statutory criteria with nine new provisions to guide them:

Detailed Findings

The court must make detailed findings on each of the [best interest factors] based on the evidence presented and explain how each factor led to its conclusions and to the determination of custody and parenting time. The court may not use one factor to the exclusion of all others, and the court shall consider that the factors may be interrelated.

Both Parents

The court shall consider that it is in the best interests of the child to promote the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents.

Diversity

The court shall consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child’s needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures.

Misconduct

The court shall not consider conduct of a party that does not affect the party’s relationship with the child.

Disability

Disability, alone, of a proposed custodian or the child shall not be determinative of the custody of the child.

False Abuse Claims

The court shall consider evidence of a false allegation of child abuse in determining the best interests of the child.

Presumption

There is no presumption for or against joint physical custody, except as outlined below.

Division of Time

Joint physical custody does not require an absolutely equal division of time.

Domestic Abuse

The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined by law, has occurred between the parents. In determining whether the presumption is rebutted, the court shall consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs. Disagreement alone over whether to grant sole or joint custody does not constitute an inability of parents to cooperate in the rearing of their children.

The phrase “custody” is used to describe the obligations, and rights, of parents regarding the care of their children.

Child custody issues come about when an unmarried couple has a child together, or when married parents get a divorce.

The two types of child custody in Minnesota are physical custody and legal custody.

Legal custody involves a parent being able to make decisions regarding the child’s upbringing and well-being (religion, education and healthcare).

Physical custody is the type of custody that a parent has when the children live primarily with them. It involves the day to day care of a child.

Parents can have joint legal custody, which means both parents have a say in the upbringing of the child. If there is a dispute, the court can intervene in order to settle the conflict.

With joint physical custody, children typically (but not always) split their time with both parents.

If a parent is awarded sole physical custody, the non-custodial parent will be granted visitation (now referred to as a more politically correct “parenting time” award). A schedule will be established. For instance, a child may live with dad, but visit mom on weekends.

In some cases, sole legal custody is granted, but those awards are rare (typically reserved for situations in which there is a history of domestic abuse among the litigants). When both parents are in the picture, the court prefers that they are equally involved in making important decisions for the child.

Child custody can be a controversial issue; it is common for both parents to want physical custody – or for one parent to seek sole custody over a joint custody arrangement.

The disagreements can go on and on, and that means the court has to intervene with the custody evaluation process. A custody evaluator is appointed, or hired, to review the situation and create a report that the court uses to determine what is in the best interest of the minor child.

It is best to cooperate with the custody evaluator in every way possible. How you interact with the evaluator is going to carry a lot of weight in the evaluation – even though the relevant statute doesn’t reference your conduct during the process.

Here are some things you should keep in mind when working with a custody evaluator:

  • They will sometimes make you feel that they are on your side. This is so you will put your guard down. Never ever make the assumption that the evaluator is on your side.
  • Keep in mind that they are human, and will react adversely to certain personalities. If you’re honest and open, then that is going to work in your favor.
  • The custody evaluator doesn’t care about who the good guys and the bad guys are. It is what is best for the child that concerns them.
  • Do not argue with the custody evaluator. You need to make eye contact and listen to them. You need to establish rapport with them, so it may help that you nod your head in acknowledgment of what they are saying. If you disagree, disagree nicely. You need to get your own points across so that they are considered.
  • Provide the evaluator with all supporting documentation, and any other documents that may be requested. It is also important to provide these documents in a timely manner.
  • If there are any collateral contacts, provide the evaluator with their names. These are individuals that are aware of your competence as a parent, and can vouch for the weak points of the other party.

About 95% of the time, the judge will adopt the recommendations of the custody evaluator. We’ve successfully tried many cases, however, in which we were able to discredit the opinion of the evaluator and gain an award of custody in favor of our client. Still, the odds are against if the report comes back in favor of your spouse. For obvious reasons, it is critical to have the custody evaluator on your side.

Modification of the physical custody of a child is one of the more difficult things to do in family court. Although we’ve successfully moved for modification many times, careful consideration is given as to whether the request should be brought in the first place.

When the court deals with physical custody the first time around, the “best interest of the child” standard applies. The judge takes into account 13 factors, such as who has served as the primary caretaker for a child, the stability of the home environment of each parent, and the wishes of the children, if of suitable age and maturity.

But what if several years after the entry of the initial custody order a parent seeks to modify it? It’s a four-step analysis, in a two-part process. In other words, it’s more complicated. Here’s how it works:

In the absence of an agreement among the parties (or integration of the child into the non-custodial parent’s home with the consent of the custodial parent), the court must find:

  1. There has been a substantial change in circumstance since the issuance of the initial custody order;
  2. The modification would serve the best interest of the child;
  3. The present environment endangers the physical or emotional health, or natural development of, the child; and
  4. The benefits associated with the modification outweigh the potential harm to the child.

In practice, the primary focus involves the endangerment element.

Proving “endangerment” is not easy. In the eyes of the court, endangerment takes on the most traditional of definitions. Has the child been physically abused by the other parent? Exposed to drugs, pornography or provided alcohol by the other parent? Has the child’s health been neglected? Have the child’s nutritional needs been ignored? Has the child’s emotional health changed substantially for the worse? Is the child failing in school?

“Endangerment” does not include a child wanting to relocate with the non-custodial parent, exposing a child to a new significant other, a child’s dissatisfaction with the social structure of the custodial parent’s home, or ongoing arguments between a child and the custodial parent. Actual harm to the child must be proven – and that can be tough, especially if the situation does not involve physical abuse (in those cases, we usually seek the opinion of a counselor or psychologist).

Procedurally, the parent wishing to modify custody must schedule a hearing with the court and serve motion papers on the other parent. At that hearing, the court must accept as true the allegations raised by the non-custodial parent. The question for the judge: if accepted as true, do the allegations establish a primae facie (at first glance) case of endangerment?

If the answer is “yes,” the court will usually appoint a Guardian Ad Litem to investigate and set the matter for a follow-up evidentiary hearing (trial). If the answer is “no,” the matter is dismissed.