Child Custody in Minnesota

Navigating child custody in Minnesota can feel overwhelming. At Martin-O'Rourke Law, we guide clients through each step in plain English so you always know what to expect.

What is the difference between legal custody and physical custody in Minnesota?

In Minnesota, legal custody refers to a parent’s legal right to make major life decisions for a child, including choices about education, medical care, and religious upbringing. Physical custody refers to the routine daily care and primary residence of the child. Both can be granted jointly or solely to one parent depending on the best interests of the child. The statute that defines there terms as of the drafting/publication of this page is Minn. Stat. Section 518.003.

How is a child custody agreement established or modified?

A custody agreement begins by filing a petition in your local Minnesota county court. If parties are married, a Petition for Dissolution of Marriage is utilized. If the parties are not married, typically the father Petitions for Custody and Parenting Time. This is because if parties are not married in Minnesota, until father brings an action, mother retains sole legal and physical custody.

Parents are encouraged to reach an agreement through mediation or settlement conferences. If an agreement cannot be reached, the court will evaluate statutory "best interest factors" to order legal custody; physical custody and parenting time.

To modify an existing custody order, you must demonstrate a substantial change in circumstances that impacts the child’s well-being or there needs to be circumstances present that endanger the child. In modification proceedings, the Court also often encourages the parties to reach agreements as opposed to proceeding to evidentiary hearing/trial.

There are time limitations on modifications that do not involve endangerment. Speaking with an attorney about concerns and providing any court orders for the attorney to review will help determine if there are any timing related concerns.

What should I ask during an initial child custody consultation?

When meeting with a Minnesota custody lawyer, or consulting with any lawyer, it is important everyone know what is expected of the other. It is also important to get a feel for if the two would work well together. Some key questions, listed below, can help clients determine if an attorney is a good fit for their situation:

• Experience: Have you handled custody cases similar to mine in my local county court? What counties do you have experience with?

• Philosophy: What is your overall philosophy and approach in custody and parenting time matters?

• Process: What is the anticipated timeline and step-by-step procedure for my specific situation?

• Costs & Scope: What are the estimated fees, and do you offer limited-scope representation if I only need help with specific steps?

• Communication: Who will be my primary point of contact, and how frequently will I receive updates? What is your preferred method of communicating with clients?

Overview of Custody Process

Custody and Parenting Time typically arise in the context of a dissolution; a custody and parenting time action (unmarried parties); third-party custody matters and/or Child in Need of Protective Services (CHIPs) matters. The below will focus on child custody and parenting time issues that arise through a dissolution of marriage or between two unmarried parties whom share a child(ren).

1. Initial Meeting between Attorney & Client

Attorney and client discuss goals, facts, and legal options.

Typically, the attorney will seek the Client complete an intake form, provide a financial overview as needed (for divorce there are additional financial considerations than in custody matters), answer questions regarding retainer agreement.

2. Case Preparation

Attorney gathers information and prepares necessary filings. Typically, these include:

·       Summons,

·       Petition for Dissolution/Petition for Custody & Parenting Time,

·       Confidential Information Form,

·       maybe Admission of Service.

If the client has already been served, then an Answer & Counter-Petition is drafted instead.

3. Filing & Service

Divorce or the custody action is formally started when the Summons and Petition are served on the other party. After those pleadings have been served, the attorney will file those documents along with the Admission of Service or an Affidavit of Service.

4. Response Period

 The responding party has a limited number of days after service to answer.

5. Initial Case Management Conference (ICMC)

Many counties utilize Initial Case Management Conferences (ICMCs). These function in a similar way to scheduling conferences. They introduce the parties to the Court and allow the Court to ascertain the issues facing the parties to determine timelines. Typically, alternative dispute resolution is highly encouraged. Typically, Courts will NOT hear any motions or contested issues before an ICMC is held.

6.Temporary Relief (if needed)

Either party may request temporary orders for custody, parenting time, support, and/or use of property. To seek temporary relief the following documents are needed:

·       Motion for Temporary Relief,

·       Supporting affidavit(s);

·       Parenting and Financial Disclosure Statement.

The attorney may determine additional documents are needed depending upon the request sought. The substantive information set forth in the supporting Affidavit(s) varies greatly depending on relief sought and underlying factual circumstances.

7. Discovery / Information Exchange/Gathering. (Please note – can occur off and on throughout process)

Both parties exchange financial and factual information. This can be done formally or informally. Some Courts prefer informal over formal discovery to start. Other courts are more flexible. Some documents that maybe prepared to exchange information include: 

•        Informal discovery letter and/or

•        Interrogatories,

•        Request for Production of Documents;

•        Request for Admissions;

•        Depositions;

•        Appraisals;

•        Custody/Parenting Time Evaluation.

Typically, discovery is one of the most expensive parts of the litigation processes.

8. Settlement Discussions / Alternative Dispute Resolution (ADR). (Please note – can occur throughout matter, though typically after some documents have been exchanged).

Parties attempt to reach agreement through negotiation or mediation or other alternative dispute resolution mechanisms. This can occur throughout the entire proceedings and/or once after exchange of information. Some documents an attorney may prepare during this part of the process may include:

• Stipulated Judgment.

• Confidential Settlement Letters/Offers.

• Mediated Settlement Agreement(s).

9. Pretrial Conference (There may be more than one, depending on circumstances)

At a pretrial conference, the Court reviews case status, encourages settlement, and sets trial dates if needed (sometimes trial dates are already set).

Prior to the pretrial, the parties each prepare a Parenting and Financial Disclosure Statement. There may be motions heard at the pretrial relating to discovery or other concerns that need to be addressed prior to trial.

10. Trial (if no settlement). (Can include only some issues or can be all issues depending on the circumstances)

 Statistically, it is unlikely a trial will be necessary. Most matters, especially family law matters, settle prior to reaching trial.

If the parties cannot reach agreements, a Judge hears evidence and issues a final decision.

The attorney and the client will prepare exhibit list and exhibits, witness list, and potentially a trial brief and/or proposed Judgment and Decree

11. Final Judgment & Decree. This can be reached following agreement or issued by a Judge following a trial. There are typically related documents at this time for dissolutions as well (Certificate of Dissolution; perhaps QDROs and Summary Real Estate Disposition Judgment depending upon the fats of a matter).

12. Post-Decree Issues. After entry, parties may need enforcement or modification of orders.

PLEASE NOTE - This is not legal advice and is for educational purposes only. Every case is different and consulting with an attorney of your choosing is best practice as it relates to any legal matter.