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The Standard for Determining Physical Custody in Minnesota

By Eric C. Nelson, Esq.

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.

1. the wishes of the child's parent or parents as to custody;

2. the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
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.
3. the child's primary caretaker
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.
4. the intimacy of the relationship between each parent and the child;
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.
5. the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
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 generally, the Court will 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 our child-focused approach to custody determinations.
6. the child's adjustment to home, school, and community;
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.

Similarly, 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.
7. the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
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."
8. the permanence, as a family unit, of the existing or proposed custodial home;
For example, 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.
9. the mental and physical health of all individuals involved; except that a disability, as defined in section 363.01, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;
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 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.
10. the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
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.
11. the child's cultural background;
This is rarely an issue that has any bearing on a custody dispute.
12. the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
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.
13. except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
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.

1 Minnesota Statute section 518.17.
2 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)].
3 Minnesota Statute section 518.17, Subdivision 1(a).
4 Id.
5 See Imdieke v. Imdieke, 411 N.W.2d 241 (Minn.Ct.App. 1987) (reversing split custody award, stating that such awards are frowned upon).
6 Sullivan v. Allen, 419 N.W.2d 822 (Minn.Ct.App. 1988).

Eric C. Nelson has devoted his practice exclusively to family law, with particular focus on divorce and child custody matters, including, but not limited to post-decree modification of custody. Eric has successfully handled hundreds of cases of divorces (both contested and uncontested), child custody, child support, spousal maintenance, parenting time, out-of-state moves, domestic abuse, harassment, and other miscellaneous family law matters, both in and out of court. Mr. Nelson has been praised by clients for a respectful attitude, promptness and honesty.

He can be contacted by phone at (612)321-9402 or
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