There are two types of custody in Minnesota: physical and legal. A parent may receive sole or joint custody. A non-custodial parent will likely receive an award of parenting time. The “best interests of the child” governs these issues.

The “Best Interest of the Child” Standard

In examining the best interests of a child, the Court will examine 12 criteria, including:

(1) a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;

(2) any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

(3) the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

(4) whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; 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;

(5) any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;

(6) the history and nature of each parent’s participation in providing care for the child;

(7) the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;

(8) the effect on the child’s well-being and development of changes to home, school, and community;

(9) the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;

(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;

(11) except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

(12) the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

The Meaning of “Legal” Custody

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).

The Meaning of “Physical” Custody

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.

Parenting Time Schedules

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.

Learn More About Custody Disputes

Our law firm has produced a series of podcasts designed to assist you. In this podcast, Jason Brown provides an overview of child custody issues:


Welcome once again everybody to the Family Law Show. This is Jason Brown. I’m one of the founding partners with the Brown Law Offices, PA, in the Northwest suburbs of the Minneapolis, St. Paul metropolitan area.

Coming to you this week and talking with you about custody issues under Minnesota law, there’s no more emotionally draining issue than custody issues. A lot of folks tell us that they could care less about the financial issues involved in a divorce. Just let the chips fall in an appropriate fashion for their kids, and they’ll be happy.

Frankly, that’s the role of the court in family court. The role of the judge is to make sure that the interests of children are protected. Basically they will let parties do as they wish when it comes to their assets and liabilities, but when it comes to kids, the courts are going to make sure that they are taken care of and that their interests are looked out for.

In doing, so the court is going to divide custody into two distinct components. One is an award of legal custody, and the other is an award of physical custody. Let’s talk about those two concepts because a lot of folks need a bit of clarification on that.

When it comes to legal custody, what the court is looking at are the role that each parent will play in the major decisions that are made on behalf of a child. Things like major educational decisions, major medical decisions, decisions involving religious affiliation, and those kinds of things. Kind of the big picture, life altering decisions, private versus public school, Catholic versus Lutheran, are we going to have life-sustaining measures or are we going to terminate treatment and hope for the best? Those types of things.

We’re not talking about the day to day routine decisions, but the big picture. What I describe to folks a lot of time is this, that the legal custody is more of a warm and fuzzy concept. It gives someone who might otherwise be a non-physical custodial parent, someone who’s got a less than equal amount of access to the children, a sense that they have an important role to play, which they do, in the life of a child.

Now the presumption under Minnesota law is that the parents will be awarded joint legal custody, and it’s up to the parent who seeks an award of sole legal custody to prove that that is the appropriate way for legal custody to be granted in the case. It is very uncommon for a court to award one parent sole legal custody over a child, but we have had cases where the court has done just that.

Typically, they are cases involving individuals who get along like oil and water. Basically, we’re talking about couples who have no ability to communicate with each other whatsoever. Other cases might involve situations where there’s been overt acts of abuse or neglect upon a child or if there’s just some other issue that has arisen in a family that would not justify one parent playing a role in these major decisions.

With about 99% certainty, the court will grant a joint legal custody in the absence of these circumstances. If you’re a party who wants to dispute that, it’s up to you to prove that it’s not appropriate.

On the other hand, an award of physical custody involves the day to day care of a child. Basically, it’s described as a child’s home base. Basically, where the child is going to reside primarily, go to school, spend the vast majority of their time, in particular, during the school week.

There are situations where parents can share joint physical custody and have a more or less 50/50 division of time. Sometimes that looks like parents having a week on, week off arrangement or a six and one arrangement where one week with one parent, one week with the other, and then one day in the middle of that week with the parent whose week it isn’t so that that parent doesn’t have to go a full week without seeing the kids. Other parents will do what’s called a 2-2-5-5 split every Monday, Tuesday with dad, every Wednesday, Thursday with mom, and then rotate every Friday, Saturday, Sunday.

Now, joint physical custody is not the presumption under Minnesota law. There are some counties that are more apt to award joint physical custody, but typically what the court is going to look at there are couples who, despite the fact that they have their marital differences, can get along relatively well, live in relatively close proximity to one another, and basically have both played a key role in the upbringing of the children since birth.

Typically, if a parent has been a stay at home parent, and the other has been taking on that more traditional work role, the odds of them being awarded joint physical custody are significantly less. However, we’ve had cases where certainly the opposite has occurred where we’ve been able to successfully represent a client who’s been the more traditional working parent and obtain that joint physical custody award. But the presumption under Minnesota law is not that the parties will share joint physical custody, but that one parent will have sole physical custody of the child subject to a reasonable amount of parenting time vested in the other parent.

The way that a court determines whether an award of joint physical custody or sole physical custody is appropriate is by looking at a series of factors that have been set forth by the legislature. These 12 factors that are contained in the statute encompass what the court has to balance in figuring out what’s best for a particular child under the specific facts in front of the court. What they’re going to look at include things like the wishes of the parents as to custody. They’re going to look at the reasonable preference of the child if the court deems that child to be of sufficient age to express a preference.

Quite often I get asked, “My child is 15 years old, and my child is 13 years old, 11 years old, 10 years old. They’ve told me they want to live with me. How much does their opinion count?” The honest answer is that as the child gets older, their opinion carries more weight. But it depends upon the maturity of the child. If a custody evaluator meets with a child and finds that child to have some very legitimate reasons for wanting to spend the vast majority of time with one parent versus the other, the evaluator’s probably going to give that child’s opinion a good deal of weight in rendering their recommendations. On the other hand, if a child is wishy washy, doesn’t really express a preference or is relatively young, that opinion is not going to be given a good amount of weight.

By the time a child is 16 or 17, it seems the more common trend now is for courts to basically allow that child to go where they wish. The underlying assumption is that you’re not going to make a 17 year old do something at they don’t want to do. Of course there are exceptions in every case, but essentially as a child gets older, the more weight their opinion will be given. But the rule really is that there is no rule. It depends upon the maturity of the child. There is no specific age at which a child gets to decide.

The third factor that makes up the best interest of the child standard involves the court looking at who has served as the primary caretaker for the child. We find the courts often spend a good deal of time assessing who has been there to get the child up in the morning, to put the child to bed at night, bathing, grooming, purchasing care of clothing, planning of meals, arranging for social interaction or alternative care.

All of these various items encompass the caretaking function associated with the child. Although they’re not supposed to, many courts put a greater amount of weight on the caretaking function. It’s awfully easy for a lawyer to go in and argue that, “Hey, look, your honor, we ought to maintain the status quo. This child has basically been in the care of mom or basically been in the care of dad since birth. Why would we want to go and change that now?”

The court’s also going to look at the intimacy of the relationship between a parent and child along with the interaction between a parent and child. Now, these sound kind of similar, but the intimacy factor really kind of looks at things like how affectionate is a child toward their parent or how close are they? Do they confide in that parent? Whereas the interaction part of it looks at what types of things do they do while they are together? Do they spend time engaging in quality family activities? Do they go out? Are they engaged with one another? Those kinds of things.

The court’s also going to look at the child’s adjustment to home, school, and community. Basically, looking at the environment that a particular parent can offer for a child. They might look at one school district versus another, if the parents are going to live apart. They might look at whether one parent is going to stay in the marital homestead or going to stay in the same school. Whether they’ll be close to friends and have access to those that they’re familiar with.

They’re also going to look at the length of time a child has lived in a particular environment. In other words, if a parent is going to stay in the marital home and a child has lived there their entire life and they’re 10 years old, there’s probably going to be some weight given to the fact that a disruption to that child’s sense of life and wellbeing would be detrimental. The court may want to maintain the status quo.

In terms of additional factors, the court will look at the mental and physical health of all of the parties involved. They will look at the predisposition of each parent to encourage the other to engage in a relationship with the child. They’ll look at whether a parent has the ability to offer love, affection, and guidance for a child, any cultural issues that may be prevalent, and whether there’s been any acts of domestic abuse. Naturally, if there have been acts of domestic abuse, the court is less likely to award that particular parent physical custody.

Well, once that decision is made, I already addressed the notion of a joint physical custody arrangement, and roughly 50/50 split of parenting time, but in the event that one parent is awarded sole physical custody, the other parent will be awarded a reasonable amount of parenting time. Typically, that will involve what we call a routine access schedule, like every other weekend, one or two evenings per week.

Typically, during the summer months, that amount of time will increase. Typically, it will also involve weekday overnights, whereas courts tend to like to see kids sleeping in the same bed each school night. It will also involve extended vacation time during the summer, non-school days usually being divided equally, along with a rotating holiday schedule. The court’s order will also outline how transportation is to be chaired and a number of other provisions that sort of govern communication between the parties.

Those then are the factors and issues involved in a physical or legal custody case. We hope that you take something from this. If you have further questions about legal custody, physical custody, or what a routine or regular award of parenting time might be pursuant to Minnesota law, we do invite you to give us a call.

Do You Need Help With A Custody Issue?

We’re here for you. Call us at 763-323-6555 for a confidential case evaluation. We can talk with you about your rights and obligations concerning custody and parenting time issues.