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Child Custody Determination/Modification

For many spouses, the custody question is the simplest one to answer. We often hear spouses who come to us say that, no matter what happens to their property or their marriage, they only want to make sure that they get to see their children. Minnesota courts look to the 14 best interests standards outlined in Minn. Stat. § 518.17. These factors include: your child’s physical, emotional, cultural, and spiritual needs, and the effect of any arrangement on those needs, special medical, mental health, or educational needs your child might have, and the history of each parent in caring for their children. Unless a court finds that an arrangement is in your child’s best interests, it will not grant a custody order.

For obvious reasons, custody disputes are one of the most contentious and complex aspects of any relationship, whether you are married or not. While many of the factors affecting a custody arrangement are context-specific, there are some general questions parents have that we often hear. If you want to speak further with an attorney who can guide you through your own custody arrangements, give our office a call at (952) 470-6361.


Will my ex and I receive 50/50 custody of our child? You may. When determining custody labels, Minnesota courts first look to the best interests of the child – if a court finds that a child’s best interests will be served by awarding both parents joint custody, that is what it will likely award. However, there are many reasons that a court might find that awarding joint custody (either physical or legal) is not in a child’s best interests. In that case, courts will award one parent sole custody, subject to the other parent’s reasonable parenting time.

My child says they want to live with me. Does that matter? The answer to that depends largely on how old your child is. Courts have the option to take a child’s expressed wishes into account, but, as a rule of thumb, the older a child is, the more weight their expressed desires are given – the opinion of a child age sixteen or seventeen means more, because that child’s brain is more developed, and they thus, are better able to understand the ramifications of what they are asking. In no case, however, is a child’s wishes as to where they want to live the sole factor a court will look to.

Does it matter that my income is very different from that of my child’s other parent? Parental income is immaterial to the question of child custody; courts are not allowed to give one parent preferential treatment based on that parent making more or less money than the other. However, parental income does matter in determinations of child support; generally, if one parent makes significantly more money than the other, they will be obligated to pay at least some child support.

There is a history of domestic abuse in our relationship. How much does that matter? While domestic abuse is not dispositive as to a custody arrangement between the parents, the presence of domestic abuse is one of the factors which courts look to. If there were previous domestic abuse issues between the parents, courts weigh that against their ability to cooperate in raising their children going forward. However, if there is any current domestic abuse, there is a presumption against joint physical custody.

We were never married. How does that affect my custody arrangement? Minnesota law provides that mothers have sole physical and legal custody of their children if, at both the time of the child’s birth and the time of conception, she was unmarried to the child’s father. Unmarried fathers have the ability to have their paternity adjudicated, and have custody and parenting time arranged through court proceedings. Paternity of children of unmarried parents can be very complicated, and has serious ramifications for any father’s right to parent their child.

How can I make sure that I get more time with my child than the other parent? There is no real “trick” to getting more parenting time than the other parent. Courts tend to look poorly on parents who view custody disputes as battles where one parent wins and one loses. If your primary goal is to maximize parenting time with your child, the best thing to do is behave as a loving, responsible parent, tending to your child’s emotional and educational needs while remaining respectful of the other parent at all times.

Should I talk about what’s happening with my child? The answer to this is extremely complicated and varies from family to family. You should always strive to keep them out of any disputes between you and the other parent. You should never use your child as a messenger or a “spy” on the other parent, and you should do everything you can, especially with younger children, to shield them from court proceedings and fights between you and their other parent. As a general rule, the best thing you should do is keep your child focused on your love for them, and make it clear that any disputes between you and their other parent does not mean that either of you does not care for your child.

How does my custody arrangement affect my child support payments? Minnesota courts determine child support payments based on a number of factors, including the gross income of both parents, whether either parent pays certain expenses (child care costs, insurance, etc), and the number of overnights each parent has with their child. Child support determinations can get very complicated, particularly when parents fight over how much child support should be paid. The Minnesota Department of Human Services maintains a calculator to give you an idea of what a parent’s child support payments might be, but courts are not obligated to adhere strictly to this calculation.

How does my custody arrangement affect my spousal maintenance payments? Spousal maintenance is money given from one spouse to another in order to permanently or temporarily provide for that spouse’s needs, and enable that benefitted spouse to maintain a similar standard of living to that maintained during the marriage. Courts determine child support and custody labels independently of spousal maintenance, and, though each obligation weighs against the others with respect to each parent’s ability to pay, spousal maintenance is generally calculated independently of custody and parenting time determinations.

What can I do to make myself look like a more fit parent? Courts look kindly on parents who strive to promote their child’s health and general welfare. There is no secret technique to looking better in the eyes of the court, but in general, things like promoting your child’s intrapersonal relationships and extracurricular activities, and facilitating a healthy lifestyle for your child will always help. Needless to say, avoiding criminal activity, associating with other criminals, overindulging in alcohol or legal drugs, and attempting to use your child as a tool against their other parent are all mistakes that can turn a court against you.

I have a custody order in place that I believe is unfair. Is there anything I can do? If you believe that the current custody order in place is unfair, you can petition the court for a modification, either of one or both custody labels, or of parenting time. This is a complex, time-consuming process that involves court appearances, and the drafting of court pleadings. There are also limitations in how often you can do it (generally one or two years, depending on previous orders). However, you can always move the court to modify your custody/parenting time arrangement if you believe that your child is being neglected or abused.