Frequently Asked Questions in Minnesota Family Court
FREQUENTLY ASKED QUESTIONS IN MINNESOTA FAMILY COURT PROCEEDINGS
The attorneys at RAM Law PLLC specialize in child custody, parenting time, and other family court proceedings. While many people in the middle of custody or family law cases initially believe that they can represent themselves in court, they often come to us in the middle of these cases realizing that they were wrong. Family law is a lot more complex than it seems at first glance and, without an understanding of the Statutes and caselaw in this area, we do not recommend representing yourself in these proceedings. Below are some common questions our family law clients often ask us at their initial consultation.
1. What is the difference between legal custody and physical custody?
Legal custody is defined as the right to determine your child’s upbringing, including education, health care, and religious training. If parents share joint legal custody, this means that they each have equal rights and responsibilities including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.
Physical custody means the routine daily care and control and residence of a child. However, it should be noted that the label of physical custody has become less significant and, sometimes, there is no designation of physical custody at all. While many parents spend thousands of dollars fighting over the physical custody label, usually what they actually intend to fight over is parenting time—which is the actual amount of time a child spends with each parent. Parenting time and physical custody are not the same thing.
Legal custody is much more important than physical custody. If one party is awarded sole legal custody, that party has sole decision-making authority regarding the minor child’s upbringing without input from the other party and over the other party’s objection. There is a rebuttable presumption in favor of parents sharing joint legal custody. If parents have joint legal custody and have a disagreement that they cannot resolve on their own or through mediation, they must ask the court to make the decision for them. In order to overcome the presumption of joint legal custody, the requesting party must convince the court that the conflict between the parents is so severe that the parents are unable to make decisions together—to the detriment of the child. Moreover, there is a rebuttable presumption that, if domestic abuse has occurred, joint legal custody and joint physical custody is not in the child’s best interest.
2. How do child custody labels affect child support?
Custody designations do not affect child support. Technically, if a parent has sole legal custody and sole physical custody, they still could be required to pay child support to the other. Each party’s respective child support obligation are directly affected by the amount of parenting time he or she has with the children—not by that parent’s custody labels. The reason that child support is affected by the actual amount of time a parent spends with a child is that parents typically will incur costs on the children’s behalf during his or her parenting time—so the child support obligation reflects this. Generally speaking, the more parenting time a parent has with a child, the less child support that parent will be required to pay—if any.
3. What factors does the court consider when determining child custody or parenting time?
When determining issues of child custody and parenting time the court must consider and evaluate the following twelve (12) “best interest factors”:
(i) A child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
(ii) Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
(iii) 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;
(iv) Whether domestic abuse 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;
(v) Any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
(vi) The history and nature of each parent’s participation in providing care for the child;
(vii) 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;
(viii) The effect on the child’s well-being and development of changes to home, school, and community;
(ix) 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;
(x) 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;
(xi) Except in cases in which domestic abuse 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
(xii) The willingness and ability of the parents to cooperate in the rearing of their child; to maximize sharing information and to minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decisions concerning the life of the child.
In addition to the best interest factors that the court must analyze in determining custody or parenting time, courts also must consider that it is in the best interests of the child to promote the child’s healthy growth and development through safe, stable, and nurturing relationships between the child and both parents. Courts also must 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, courts must 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 parental styles may differ between parents and among cultures.
Importantly, a court cannot consider a party’s conduct that does not affect that party’s relationship with the child and, if a parent is disabled, that alone will not be determinative of the custody of a child.
4. Does joint physical custody mean the children will spend an equal amount of time with each parent?
As stated above, the amount of parenting time a parent has is determined by the parenting time schedule, rather than the physical custody label. Even if parties share joint physical custody, that does not mean that they will have the children in their care 50 percent of the time. While physical custody was once very important to the calculation of child support and the ability of a parent to move to another state, that is no longer the case. With that said, physical custody may affect school attendance in some districts to a certain extent. In the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive a minimum of 25% of the parenting time for a child—even if that parent does not have physical—or even legal—custody.
5. When can my child decide where they live?
There is not bright-line rule regarding the age at which a child’s preference is considered by the court. While children (especially older children) may be given an opportunity to express his or her preference to the court, that decision is left up to the parents and, if the parents cannot agree—to the court. As stated above, the reasonable preference of the child must be considered by the court—but only if the court deems the child to be of sufficient ability, age, and maturity to express an independent and reliable preference.
Past courts have considered preferences of children ages 7 years, 10 months, and 10 years old. It is challenging to determine how a court will treat a child’s preference in any given case. At 8 years old, if the parents request, the court is permitted to inform the child of the rights of the child and each parent under the court order or decree, or any substantial amendment thereof. Generally, the preference of an older teenager is given great weight. And, a child’s preference may be given little to no weight if the court finds the preference to be unreasonable or results from one parent’s undue influence, coaching, or manipulation. For instance, if a 16-year old child wants to live exclusively at his or her father’s house—but that preference is based exclusively on the fact that the father lets the child smoke marijuana—it is likely that a court would not find that preference to be reasonable. And if a mother submits an affidavit of an 11-year-old child to the court badmouthing the other parent—there is a chance that the court would not find such information to be reliable.
Many times, a child’s preference is communicated to the court through a report or testimony of a neutral third party, such as a guardian ad litem, therapist, or custody evaluator. Courts may also interview a child in chambers to ascertain the child’s preference outside the presence of the child’s parents. While children may testify in open court, this is rarely permitted in family proceedings. And, no child under the age of 14 will be allowed to testify without prior written notice to the other party and approval by the court.
6. How does domestic abuse affect custody and parenting time?
Courts must consider domestic abuse in determining custody and parenting time. Domestic abuse between the alleged abuser and any person (not just the other party) may be considered by the court. The court will then decide whether that domestic abuse will affect the minor child and the abuser’s ability to parent. Courts will also consider the conduct of a victim of domestic abuse. If abuse has occurred between the parents, the court must determine whether co-parenting is possible given the context and nature of the domestic abuse.
7. Can I move (either in-state or out of state) with my children?
The primary thing to consider when considering a move with the children is whether the other party’s parenting time would be affected by that move. If parenting time will not be affected and the move is inside of the State of Minnesota, then the parent who has sole physical custody would likely be able to move the child’s residence. If the other parent’s parenting time would be affected or if the move is out of state and the other parent has court-ordered parenting time, the affected parent would have to agree to the move and the parenting time schedule would have to be modified. However, if the other parent does not consent to the move, the parent with who the child resides may not move the residence of the child to another state without first obtaining a court order.
If the purpose of the move is to interfere with the parenting time of the other parent, the court will not allow it. The parent requesting the move out of state is required to prove why the move is in the child’s best interests, unless that parent has been the victim of domestic abuse by the other parent, in which case the parent opposing the move would have to prove why the move is not in the child’s best interest.
Sole physical custody does not mean that the parent with sole physical custody may move the residence of the child whenever that parent wants if it will affect the other parent’s parenting time. In determining whether a parent may move a child out of state, courts must consider a number of factors, including the impact the move would have on the child’s relationships. In determining whether a parent may move the child’s residence inside the State of Minnesota, courts will consider the best interest factors listed in section 3 above.
8. What do I do if my child refuses to spend parenting time with the other parent?
Parents must present the child for parenting time exchanges in accordance with the court order. If you do not follow the court order regarding parenting time, there can be serious consequences. For instance, you may be required to provide the other parent with make-up parenting time, you may be required to pay money or post a bond with the court, or you may even be required to pay for the other party’s attorney’s fees. An unwarranted denial of or interference with a parenting time schedule may constitute contempt of court and may even be grounds for the reversal of custody.
While the preference of the child may impact the court’s decision regarding parenting time, the primary focus is on the best interests of the child. If there are legitimate concerns about the other parent which endangers the child, a court hearing must be held to determine if parenting time needs to be modified. While a motion to modify custody usually cannot be made less than one year after the original order was issued, this time period does not preclude such a motion if the court finds that there is a persistent and willful denial of or interference with parenting time.
While the above questions are some of the most common questions our clients ask us regarding custody and parenting time, the above answers are a high-level overview. These issues are much more complex given the Statutes and caselaw in these areas. The law is constantly evolving and changing, and how these laws are applied may change as the children grow and develop. Therefore, it is paramount to retain the services of an experienced child custody and parenting time attorney to achieve the best possible result in the best interests of your children. If you are going through a child custody or parenting time proceeding, contact RAM Law PLLC at (651) 468-2104 to schedule your initial consultation.