Child Custody FAQ

Who will get custody of our children?

If you have children younger than age 18, the most perplexing issue you face is probably who the children are going to live with and who will make important decisions for them. Custody can be settled almost any way to which the parties are able to agree. At Rinke Noonan, we believe that every effort should be explored to obtain a custody agreement in a harmonious manner. If you cannot agree on your own or through mediation, the court will decide as described in the following paragraphs.

What is a co-parenting class?

If you have minor children you will be required to take a co-parenting class, even if you and your spouse agree on custody. This class does not explain how to parent, it teaches parents how to prevent your children from being placed in the middle of any disagreements you and your spouse may have. Each county uses different agencies for these classes.

What is the difference between “physical custody” and “legal custody?”

There are two types of custody. “Physical custody” essentially refers to which parent the children primarily live with. Sole physical custody means that only one of the two parents has control over the child’s day to day life and that child actually lives with that parent. “Legal custody” refers to which parent may make important decisions about the child’s life, including decisions about health, education and religion. It is possible for one parent to have the sole legal custody or for both to have joint (shared) legal custody.

In Minnesota, the law presumes that both parents will share legal custody of the children. That is, both parents should have shared involvement in fundamental decisions regarding the children’s cultural upbringing, health, educational and religious training. In unusual circumstances, the court will decide that only one parent should have legal custody. Legal custody has no bearing on child support obligations, where the child lives or parenting time (visitation).

Can we have joint physical custody?

Although it may not be as typical as one parent having sole physical custody, it is becoming more common. Whether joint custody is right for you is a highly individual decision. Joint physical custody is where both parents have shared physical custody of the children. This arrangement can be set up in several different ways. It might be that the children live primarily with one parent during the school year and the other during the summer months or it might alternate weekly or almost anything in between. Because there is almost always parenting time (visitation) between the children and parents, the difference between sole physical custody with parenting time and joint physical custody can sometimes become blurred. However, there are some differences between sole physical custody with parenting time (visitation) and joint physical custody.

Some of these relate to the ease by which the living arrangement can be modified and the ability to remove the children from the state. With joint physical custody, it may be easier to change the amount of time that each parent has the children. The designation of physical custody as sole custody or joint custody has no bearing on child support.

What are Parenting Plans?

Parenting plans are a way for parents to detail where the child will live and may include other “rules” such as restrictions on moving that are not otherwise available. Although parenting plans try to avoid using phrases such as “custody” or “parenting time”, state and federal law requires that the plan indicate if one or both parents have custody.

What if we cannot agree on custody?

If you and your spouse are unable to agree on custody of the children, it becomes necessary for the court to become involved. As discussed above, in most instances, the court will first order that you and your spouse participate in mediation sessions. If you and your spouse cannot agree on a mediator, one will be appointed to you by the Court. The purpose is to see if you and your spouse can agree on the custody. If it is suggested that there has been spousal or child abuse, the court may not order mediation. If you are still unable to agree after mediating, the court will then order that a custody study be prepared. A custody study is a lengthy report prepared by a court-ordered person who will meet with you and your spouse, the children and perhaps contact other people, including teachers, counselors, medical providers, and relatives. There is a cost for mediation and also for a custody study. The court may order that either party pay this or that the cost be shared.

Once the custody study has been completed, if the parties still cannot agree, there will have to be a trial. After the trial, the judge will make a decision about custody based upon the best interests of the children. The court will consider which parent can provide the most stable and satisfactory environment for the children and which parent is most likely to continue to bring up the children in the manner in which they have been raised. The court will also consider which parent is the “primary caretaker.” The primary caretaker is the parent who provided most of the day-to-day care for the children prior to the parents’ separation. If the child is of a “suitable” age, the court may consider where the child wishes to live. There is no magic age for this. However, it is typically around age ten to twelve, depending on the child’s maturity. Even then, the court will not decide based solely on the child’s preference, but will take it into consideration.

It is unfortunate, but true, that sometimes parents fight for custody of their children out of anger or because they have been hurt by events leading up to the divorce. The result is generally harmful to the children and to both parents. Your children will benefit if both parents concentrate on what is best for their children, rather than acting out of anger. Custody disputes can be extremely expensive. Your attorney can provide you with more information about the possible cost and discuss the factors used by the courts in deciding custody disputes.

Will the parent who doesn’t have custody still see the child?

Even with sole physical custody, the other parent (“non-custodial”) nearly always has parenting time. That is, the non-custodial parent will have the right to spend time with their children. This might include periods as short as a few hours or may extend all the way to entire summers. Typically, parenting schedules include some weekends and may include a weekday evening or overnight parenting time (visitation). It is also common for the non-custodial parent to get extended parenting time with the children in the summer and over school breaks. The parties will often alternate spending holidays with the children. Parenting schedules can be set up in almost any way that the parents feel comfortable. In most cases the court will encourage both parents to have as much contact with the children as possible. As we have previously stated, sometimes the difference between sole physical custody and joint physical custody is merely one of words. However, your attorney can explain the probable legal consequences before you make these decisions. Parenting time is generally beneficial to the whole family. In addition to being important to the children, it can also provide a welcome break from the rigors of sole parenting. As explained later, the parenting schedule does affect child support.

May the parent having physical custody move out of the state, or move within the state?

The custodial parent may only move out of state with the children if they have either: 1) the other parent’s consent; or 2) permission from the court. If the non-custodial parent opposes the move, the custodial parent will have to go into court seeking permission. The law assumes it is not in a child’s best interest to move out of state away from the other parent. The parent wishing to move must show the court that the move is in the child’s best interest and that the purpose is not to interfere with the non-custodial parent’s relationship with the children. If the court allows the move, it may be necessary to adjust the parenting schedule and to allocate the cost of transportation.

If the custodial parent wishes to move within the state, they do not need the permission of the non-custodial parent or the court. Obviously, this can create problems as a parent who lived across town may now live 300 miles away. In this situation, it may be necessary to modify the parenting schedule and to address how transportation will be handled. Generally, the court will try to provide the non-custodial parent with approximately the same amount of parenting time, although it may have to be changed to less frequent, but longer, visits.

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