FAMILY LAW
Custody & Parenting
Under Minnesota law, there are two types of child custody:
- “Legal custody” refers to the right to make decisions about how to raise the child, including decisions about education, health care, and religious training.
- “Physical custody” refers to the right to make decisions about the routine day-to-day activities of the child and where the child lives.
Depending on several factors, parents may share custody which is called “joint custody.” If only one parent has full custody, that is called “sole custody.”
“Joint legal custody” means that both parents share the responsibility for making decisions regarding how to raise the child, including the right to participate in major decisions about the child’s education, health care, and religious training. “Joint physical custody” means that the routine daily care and control and the residence of the child is structured between both parents.
There is also the possibility of different combinations of custody of a minor child. For example, both parents might have joint legal custody but only one parent may have sole physical custody.
When considering a petition for custody, Minnesota courts consider what is in the best interest of the child(ren). These best interest factors are established in Minnesota Statute 518.17 and are available to review here.
If you live in Minnesota but your child lives with the other parent in another state, your case may be more complicated. We recommend that you consult with a lawyer experienced in custody matters about where you may be able to file your custody case or modify an existing custody order.
PARENTING TIME
When parents are separated, the court usually wants both parents to be involved in the child’s or childrens’ lives if doing so is in the best interest of the child or children. The parent who does not have custody of the children usually gets parenting time.
Parenting time is ordered by the court so that the child and the parents have the opportunity to maintain a relationship. Factors influencing parenting time orders include, but not limited: child’s age, child’s safety, and the child’s past relationship with the parents.
Parents can agree to change parenting time but, if the parents don’t agree, a parent can petition the court to change parenting time if it is best for the child.
Enforcing a parenting time order can be hard, especially if the child is older and does not want to see the other parent. But a parenting time court order can be enforced until the child turns 18.
PATERNITY
A “paternity” legal proceeding is the process of determining the legal father of a child. Once the legal father has been determined, he has an obligation to support the child financially and the right to petition the Court for custody and/or parenting time. In Minnesota law, the unmarried mother has sole custody unless a Court issues a custody order indicating otherwise.
The process of determining paternity has several components and important time frames including completion of the “Recognition of Parentage Form”, “Minnesota Father’s Adoption Registry” and a host of legal factors related to petitioning for custody and/or parenting time.
Our family law attorneys are experienced in representing parents who are seeking permission to relocate or defend against an attempt to relocate by the other parent; often through a court proceeding or out-of-court negotiations.
The most important consideration outside of the legal parameters, is the wellbeing of the child(ren) and their ability to maintain a relationship with each parent, as dictated by the custody order.
Beyond this primary concern, there are multiple factors that courts consider in relocation proceedings which need to be in the best interest of the child(ren):
- The nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons in the child’s life;
- Who has been the child’s primary caregiver;
- The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration special needs of the child;
- The feasibility of preserving the relationship between the non-relocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;
- The child’s preference, taking into consideration the age and maturity of the child;
- Whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the non-relocating person;
- Whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;
- The reasons of each person for seeking or opposing the relocation; and
- The effect on the safety and welfare of the child, or of the parent requesting to move the child’s residence, of domestic abuse, as defined in section 518B.01.
The burden of proof falls on the parent requesting relocation unless they are the victim of domestic abuse by the other parent.
The court will also consider the reasons a parent wants to move such as employment or family connections.
Minnesota has common and statutory laws that allow grandparents the ability to seek visitation and even custody, both of which can be complicated partly because the State sees grandparent visitation as an extension of the parents’ rights. Furthermore, it can be difficult for a grandparent to seek visitation time if the child’s parents object. However, there may be circumstance that allow grandparents to gain visitation, even sometimes custody, due the circumstances of the case. These circumstances typically include:
- The grandparent’s child, which is the parent of the child in question, is deceased
- The grandparent has been the primary caretaker of the child for at least 12 months and they are now seeking custody.
The court will look at all factors, including what is in the best interest of the child.
Consulting with an experienced family law attorney with litigation experience will help you determine whether to pursue visitation or custody based on the circumstances and facts of your situation. Baker Vicchiollo Law has represented grandparents and the litigation experience necessary to address complex cases involving grandparents’ rights.
