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Initial Custody and Parenting Time Determination. Custody and parenting time can come into play in divorce proceedings, in actions for paternity, when a third party such as a grandparent is caring for the child, or if the child is involved in a “child in need of protective services” (CHIPS) case. In Minnesota, for a judge to address the matter, the child needs to have lived with the parent or person acting as a parent for six consecutive months (180 days) before the process is started. Custody is broken down into two areas: legal (right to make decisions about raising the child including education, health care and religion) and physical (making decisions about the daily activities of the child and where they live). Custody can be either joint (shared by both parents) or sole (one parent having primary custody). The initial determination of custody is based on the best interests of the child standard.

There are 13 factors in the best interests standard which are as follows:

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;
3. The child’s primary caretaker;
4. The intimacy of the relationship between each parent and the child;
5. The interaction and interrelationship of the child with a parent, siblings, and any other person who may significantly affect the child’s best interests;
6. The child’s adjustment to home, school and community;
7. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
8. The permanence, as a family unit, of the existing proposed custodial home;
9. The mental and physical health of the all individuals involved;
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;
11. The child’s cultural background;
12. The effect on the child of the actions of an abuser, if related to domestic abuse; and
13. Except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

[see fully Minnesota Statutes 518.17, subd. 1]

If one parent is granted sole physical custody, the other parent may be awarded parenting time (also known as visitation). This refers to the time that the non-custodial parent spends with the child and is normally set on an agreed upon schedule.

Modification of Custody and/or Parenting Time. The modification of custody or parenting time is based, again, on the best interests of the child. Modification cannot be made until at least one year after the initial determination except in certain limited circumstances. Under Minnesota law, the court can only modify custody or parenting time if: the court finds that the change is in the best interests of the child; both parties agree to the modification; the child has been integrated into the family of the parent seeking to modify with the consent of the other party; or the child’s present environment endangers the child. The Court may take other factors into consideration in determining whether the modification is the child’s best interest.

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