Determining who will get custody of the kids can be the most stressful, emotional and anxiety-provoking issue in the entire divorce. Will you get to “keep” your kids? Will you be able to celebrate holidays with your children, help them with their homework, tuck them into bed? Will you have to drop them off at their other parent’s house and lose control of whatever happens while they’re there? This fear of loss of time and control with those you cherish most can be terrifying.
KMH understands this and will walk you through all the custody options and possibilities. We’ll explain the different types of custody in Minnesota and how the court looks at what custody and parenting time arrangement will be in the best interest of your children. We’ll advise you on how the specific factors in the best interest of the child standard impact your specific case. And we’ll advocate vigorously on your behalf to ensure that your parental rights are protected and that the end result is in the best interest of your children and your family.
In Minnesota, there are two types of child custody: legal custody and physical custody. “Legal custody” is the right to make decisions about how the child will be raised, such as decisions about education, health care and religious training. “Physical Custody” concerns the child’s daily care and where they will live.
Parents may be awarded joint or sole custody. “Joint custody” means that they share the particular custody. For example, if a party is awarded joint legal custody, each party shares the right to make decisions about the child’s schooling, medical care and spiritual life. “Sole custody” gives one party the exclusive right to make those decisions. However, if one party has sole physical custody, it doesn’t necessarily mean the other party won’t be able to see the child. The non-custodial parent may have the right to what’s called “parenting time” – the right to spend time, even time overnight, with the child. Likewise, if the parties are awarded joint physical custody, they won’t each necessarily have to right to spend 50% of the time with the child because one party may be awarded more parenting time.
When deciding child custody issues, the court’s decision is based upon what it deems to be in the best interest of the child. The child’s best interest is always paramount. To decide what custody and parenting time arrangement is in the best interest of the child, the court considers 12 factors:
- The child’s physical, emotional, cultural, spiritual, and other needs;
- Any special medical, mental health, or educational needs the child may have;
- The child’s custody preference if the child is old enough and has the ability and maturity to express an independent, reliable preference;
- Whether domestic abuse has occurred with either parent and how it could affect the child’s safety, well-being and development;
- Any physical, mental or chemical health issues of a parent that affects the child’s safety or development;
- Each parent’s past participation in caring for the child;
- Each parent’s willingness and ability to meet the child’s ongoing developmental, emotional, spiritual and cultural needs and to be consistent with parenting time;
- The effect of changes to the child’s home, school and community on the child’s well-being and development;
- The effect of the proposed arrangements on the child’s relationships with each parent, siblings, and other significant people in the child’s life;
- 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;
- Except when there has been domestic abuse, 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
- The parents’ willingness and ability to cooperate in raising their child, to maximize sharing information and minimize exposure of the child to parental conflict and to be willing to try to resolve disputes regarding the child’s life.
The court presumes that a parent is entitled to receive at least 25% parenting time. However, if it looks at these 12 factors and finds that time spent with one of the parents is likely to endanger the child’s physical or emotional health, the court may restrict the time, place or duration of the parenting time or require that the parenting time be supervised. The court may even deny parenting time altogether.