Determining Physical Custody in Minnesota
- by Eric C. Nelson, Attorney
As in many areas of family law, the standard applied by the Court in making an initial award of physical custody is the so-called “best interest of the child” standard. This standard requires findings by the Court with respect to all relevant factors, including the following factors enumerated by statute. [1] No single factor is controlling; and this is a non-exclusive list.
1. the child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;
This could be anything. Maybe the child has special needs, which one party or the other is better able to address. Maybe one parent is in a cult. They key is to identify how best to serve 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;
This normally isn't a factor, but when it is a factor, it matters a lot. Courts want to be sure that a child's special needs are being met.
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;
Contrary to common belief, in Minnesota there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child’s preference carries, whether in the initial custody determination or in the context of a motion to modify custody. [2] For teenage children, this factor is very compelling.
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;
Obviously, scenes of domestic abuse (i.e., causing physical harm or fear of immediate physical harm), do not set a good example for children. If a parent has a pattern of engaging in domestic abuse, this is an obstacle in obtaining custody.
Allegations of domestic abuse are common in custody cases. Sometimes the domestic abuse is real. Other times it is a complete lie or a gross exaggeration of the truth. Whatever the case, this factor can carry significant weight in a custody determination.
5. any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;
Physical health issues that affect custody are rare, and generally obvious when they exist. For example, I had a client once who couldn’t exercise custody because he was disabled by advanced Multiple Sclerosis.
Mental health issues are very commonly raised in custody cases. If you have ever seen a psychologist, psychiatrist, or counselor of any kind, or ever received any diagnosis or treatment for any mental health issues, including alcohol or chemical abuse issues, you can expect that this history will be fully explored.
When legitimate issues of mental illness or alcohol or drug abuse are raised, the custody evaluator will often order a psychological evaluation or alcohol/chemical dependency assessment as part of the custody evaluation. This can sometimes catch someone with an undiagnosed condition.
It is important to note that having a mental illness or alcohol or drug abuse history does not preclude a parent from receiving custody. Rather, the focus is on the extent to which the mental illness affects one’s parenting, if at all. Run-of-the-mill depression and/or anxiety, which is treated by medication and does not involve suicide attempts, will not likely be a determining factor in a custody dispute. A single DUI from five years ago isn't going to be a big factor, unless there is evidence that the parent is currently drinking excessively and harming or neglecting the child.
6. the history and nature of each parent's participation in providing care for the child (i.e., who provided the day-to-day physical, emotional, and intellectual care for the child, including such parental functions as the following: preparing and planning of meals; bathing, grooming and dressing; purchasing, cleaning, and care of clothes; medical care, including nursing and trips to physicians; arranging for social interaction among peers after school, e.g., transporting to friends’ houses or , for example to Girl Scout or Boy Scout meetings; arranging alternative care, i.e., babysitting, daycare, etc.; putting child to bed at night, attending to child in the middle of the night, waking child in the morning; disciplining, i.e., teaching general manners and toilet training; educating, i.e., religious, cultural, social, etc.; and teaching elementary skills, i.e., reading, writing, and arithmetic);
Many people assume that the primary caretaker is automatically awarded sole physical custody. This is not true. All factors must be considered. [3] The Court is prohibited from making a presumption that the primary caretaker should receive custody. [4] That said, this still tends to be a strong factor in custody determinations.
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;
Parenting time can be lost if a kids is frequently tardy or absent from school during a party's parenting time, doesn't get a child to church as ordered, or most importantly, does not abide by a court-ordered parenting time schedule — either by wrongfully denying parenting time to the other parent, or by failing to exercise parenting time that has been awarded.
Love is seldom an issue. Rarely is it argued that a parent does not love a child. For various reasons, however, some parents have abundant time and energy to devote to their children, and other parents do not. If you spend most of your free time caring for your child — e.g., reading books, playing games, going to activities, helping with homework, etc. — you will be in a better position that a parent who prefers to spend evenings at the local pub, or otherwise pursue activities that do not include the children.
8. the effect on the child's well-being and development of changes to home, school, and community;
As a general rule, the Court favors as much stability and continuity as possible for children. The separation of parents is devastating enough on children as it is, without adding to it by changing child care providers, schools, activities, or other relationships in the children's lives.
If a parent has a history of moving and changing a child's school with frequency, that is not looked upon favorably. And a parent who offers a permanent family unit, either as a single parent or together with a step-family, will have an advantage here over a parent whose living situation is regularly in flux, living with a significant other one month, parents the next month, a friend’s basement the next month, a new significant other the next month, etc.
Obviously, if a child is well-adjusted to a particular home, school, and community, and an award of custody to a parent would necessitate a change of home, school, and/or community, that will weigh against an award of custody to that parent.
That said, if the child is not well adjusted to a particular home, school, and community, and an award of custody to a parent would provide a beneficial change of environment, this will weigh in favor of an award of custody to that parent.
The desirability of maintaining continuity in a good environment is a commonly recited theme in family law. This idea is that children need continuity and stability, and that upheavals are generally difficult for them. This is not to say that the courts will maintain continuity for its own sake. Divorce is always a time of major change and upheaval. But for the things that need not change, the idea is that “if it ain’t broke, don’t fix it.”
This is why it is important in a custody dispute to be in a position to maintain continuity of environment for the children. For example, if the children have lived in and attended school in Minnesota for many years, and you indicate the intention of moving yourself to another state, that will be a factor that counts against you in the custody determination, because awarding you custody would necessitate other dramatic changes in the children’s lives.
9. the effect on the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;
If for example a child is acknowledged to be a “Mama’s boy” or “Mama’s girl”, or a “Daddy’s girl,” or Papa’s boy”, this is the kind of evidence which is pertinent in showing the Court that a special bond exists between a child and one or the other parent.
Intimacy between a parent and child is a positive factor, but not at the expense of enforcing discipline and limits.
This is a broad category encompassing all significant persons in a child’s life. It is under this heading where issues are discussed such as a child’s hatred of a parent’s new live-in boyfriend or girlfriend, a special attachment to a grandparent who lives with one parent or the other, sibling bonds, etc.
I would note that the Court will almost never split up siblings, particularly siblings who are close in age or preteen. [5]
Where a child has developed an attachment to a step-sibling, this also is considered. [6] While this may be seen as creating an unfair advantage for the biological parent of the step-sibling, it is nevertheless the reality, which is based on the child-focused approach to custody determinations.
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
This is another important factor, and is a good reason for any parent seeking custody to accommodate the other parent’s reasonable requests for parenting time. Regardless of how good a parent you may otherwise be, if you allow parenting time and telephone contact by the other parent only begrudgingly or after being compelled by court order, this will count against you unless you have a very good excuse.
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.
This factor addresses legal custody more so that physical custody. See my separate article on Legal Custody.
Conclusion
I list all these factors, because they are the framework applied by custody evaluators and courts. However, it is a mistake to focus too technically on these factors. It is more important to put serious thought into the particular reasons why your proposed custody and parenting time arrangement would be better than that which the other party proposes, and to emphasize those points most heavily. An experienced family law lawyer will be able to work with you to identify the best arguments, and to make them effectively.
Footnotes:
1. the child's physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child's needs and development;
This could be anything. Maybe the child has special needs, which one party or the other is better able to address. Maybe one parent is in a cult. They key is to identify how best to serve 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;
This normally isn't a factor, but when it is a factor, it matters a lot. Courts want to be sure that a child's special needs are being met.
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;
Contrary to common belief, in Minnesota there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child’s preference carries, whether in the initial custody determination or in the context of a motion to modify custody. [2] For teenage children, this factor is very compelling.
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;
Obviously, scenes of domestic abuse (i.e., causing physical harm or fear of immediate physical harm), do not set a good example for children. If a parent has a pattern of engaging in domestic abuse, this is an obstacle in obtaining custody.
Allegations of domestic abuse are common in custody cases. Sometimes the domestic abuse is real. Other times it is a complete lie or a gross exaggeration of the truth. Whatever the case, this factor can carry significant weight in a custody determination.
5. any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;
Physical health issues that affect custody are rare, and generally obvious when they exist. For example, I had a client once who couldn’t exercise custody because he was disabled by advanced Multiple Sclerosis.
Mental health issues are very commonly raised in custody cases. If you have ever seen a psychologist, psychiatrist, or counselor of any kind, or ever received any diagnosis or treatment for any mental health issues, including alcohol or chemical abuse issues, you can expect that this history will be fully explored.
When legitimate issues of mental illness or alcohol or drug abuse are raised, the custody evaluator will often order a psychological evaluation or alcohol/chemical dependency assessment as part of the custody evaluation. This can sometimes catch someone with an undiagnosed condition.
It is important to note that having a mental illness or alcohol or drug abuse history does not preclude a parent from receiving custody. Rather, the focus is on the extent to which the mental illness affects one’s parenting, if at all. Run-of-the-mill depression and/or anxiety, which is treated by medication and does not involve suicide attempts, will not likely be a determining factor in a custody dispute. A single DUI from five years ago isn't going to be a big factor, unless there is evidence that the parent is currently drinking excessively and harming or neglecting the child.
6. the history and nature of each parent's participation in providing care for the child (i.e., who provided the day-to-day physical, emotional, and intellectual care for the child, including such parental functions as the following: preparing and planning of meals; bathing, grooming and dressing; purchasing, cleaning, and care of clothes; medical care, including nursing and trips to physicians; arranging for social interaction among peers after school, e.g., transporting to friends’ houses or , for example to Girl Scout or Boy Scout meetings; arranging alternative care, i.e., babysitting, daycare, etc.; putting child to bed at night, attending to child in the middle of the night, waking child in the morning; disciplining, i.e., teaching general manners and toilet training; educating, i.e., religious, cultural, social, etc.; and teaching elementary skills, i.e., reading, writing, and arithmetic);
Many people assume that the primary caretaker is automatically awarded sole physical custody. This is not true. All factors must be considered. [3] The Court is prohibited from making a presumption that the primary caretaker should receive custody. [4] That said, this still tends to be a strong factor in custody determinations.
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;
Parenting time can be lost if a kids is frequently tardy or absent from school during a party's parenting time, doesn't get a child to church as ordered, or most importantly, does not abide by a court-ordered parenting time schedule — either by wrongfully denying parenting time to the other parent, or by failing to exercise parenting time that has been awarded.
Love is seldom an issue. Rarely is it argued that a parent does not love a child. For various reasons, however, some parents have abundant time and energy to devote to their children, and other parents do not. If you spend most of your free time caring for your child — e.g., reading books, playing games, going to activities, helping with homework, etc. — you will be in a better position that a parent who prefers to spend evenings at the local pub, or otherwise pursue activities that do not include the children.
8. the effect on the child's well-being and development of changes to home, school, and community;
As a general rule, the Court favors as much stability and continuity as possible for children. The separation of parents is devastating enough on children as it is, without adding to it by changing child care providers, schools, activities, or other relationships in the children's lives.
If a parent has a history of moving and changing a child's school with frequency, that is not looked upon favorably. And a parent who offers a permanent family unit, either as a single parent or together with a step-family, will have an advantage here over a parent whose living situation is regularly in flux, living with a significant other one month, parents the next month, a friend’s basement the next month, a new significant other the next month, etc.
Obviously, if a child is well-adjusted to a particular home, school, and community, and an award of custody to a parent would necessitate a change of home, school, and/or community, that will weigh against an award of custody to that parent.
That said, if the child is not well adjusted to a particular home, school, and community, and an award of custody to a parent would provide a beneficial change of environment, this will weigh in favor of an award of custody to that parent.
The desirability of maintaining continuity in a good environment is a commonly recited theme in family law. This idea is that children need continuity and stability, and that upheavals are generally difficult for them. This is not to say that the courts will maintain continuity for its own sake. Divorce is always a time of major change and upheaval. But for the things that need not change, the idea is that “if it ain’t broke, don’t fix it.”
This is why it is important in a custody dispute to be in a position to maintain continuity of environment for the children. For example, if the children have lived in and attended school in Minnesota for many years, and you indicate the intention of moving yourself to another state, that will be a factor that counts against you in the custody determination, because awarding you custody would necessitate other dramatic changes in the children’s lives.
9. the effect on the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life;
If for example a child is acknowledged to be a “Mama’s boy” or “Mama’s girl”, or a “Daddy’s girl,” or Papa’s boy”, this is the kind of evidence which is pertinent in showing the Court that a special bond exists between a child and one or the other parent.
Intimacy between a parent and child is a positive factor, but not at the expense of enforcing discipline and limits.
This is a broad category encompassing all significant persons in a child’s life. It is under this heading where issues are discussed such as a child’s hatred of a parent’s new live-in boyfriend or girlfriend, a special attachment to a grandparent who lives with one parent or the other, sibling bonds, etc.
I would note that the Court will almost never split up siblings, particularly siblings who are close in age or preteen. [5]
Where a child has developed an attachment to a step-sibling, this also is considered. [6] While this may be seen as creating an unfair advantage for the biological parent of the step-sibling, it is nevertheless the reality, which is based on the child-focused approach to custody determinations.
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
This is another important factor, and is a good reason for any parent seeking custody to accommodate the other parent’s reasonable requests for parenting time. Regardless of how good a parent you may otherwise be, if you allow parenting time and telephone contact by the other parent only begrudgingly or after being compelled by court order, this will count against you unless you have a very good excuse.
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.
This factor addresses legal custody more so that physical custody. See my separate article on Legal Custody.
Conclusion
I list all these factors, because they are the framework applied by custody evaluators and courts. However, it is a mistake to focus too technically on these factors. It is more important to put serious thought into the particular reasons why your proposed custody and parenting time arrangement would be better than that which the other party proposes, and to emphasize those points most heavily. An experienced family law lawyer will be able to work with you to identify the best arguments, and to make them effectively.
Footnotes:
- Minnesota Statute section 518.17.
- See Ross v. Ross, 477 N.W.2d 753, 756 (Minn.Ct.App. 1991) [citing State ex rel. Feeley v. Williams, 222 N.W.2d 927, 928 (Minn. 1929) (preference of 12½-year-old given great weight in maintaining her custody with aunt and uncle)].
- Minnesota Statute section 518.17, Subdivision 1(a).
- Id.
- See Imdieke v. Imdieke, 411 N.W.2d 241 (Minn.Ct.App. 1987) (reversing split custody award, stating that such awards are frowned upon).
- Sullivan v. Allen, 419 N.W.2d 822 (Minn.Ct.App. 1988).