We are often asked by our clients if there is a presumption favoring one party or the other in custody and parenting time cases, such as whether the courts favor mothers, or does the court assume that joint custody and equal parenting time is best for the child(ren).

Generally, the answer is No – there is no presumed custody arraignment or parenting time plan.

In Minnesota, there is what is known as legal custody and physical custody. Legal custody “means the right to determine the child’s upbringing, including education, health care and religious training.” Minn. Stat. § 518.003, subd. 3(a). Physical custody “means the routine daily care and control and the residence of the child.” Minn. Stat. § 518.003, subd. 3(c).

According to Minn. Stat. § 518.17, subd. 2, “there is no presumption for or against joint physical custody, except when domestic abuse, as defined in section 518B.01, has occurred between the parents.” However, there is a rebuttable presumption that joint legal custody is in the best interests of the child if one party requests joint legal custody. There is a rebuttable presumption that joint physical and legal custody is not in the best interests of the child(ren) if domestic abuse has occurred.

Custody labels (legal and physical) are not the most important things to be resolved in most parenting disputes. Rather, parenting time, “the time a parent spends with a child regardless of the custodial designation” is often the most critical issue in dispute.

The Court considers the best interests of the child(ren) to determine which parent should have legal or physical custody, and the amount of parenting time each parent shall have. Section 518.17 lists 13 factors the Court can consider in determining what is in the best interests of the child(ren).

If a party is seeking joint legal or physical custody, a Court will consider the following, in addition to the best interests of the child(ren) factors:

1. The ability of the parents to cooperate regarding any major decision concerning the life of the child, and the parent’s willingness to use those methods;
2. Whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and
3. Whether domestic abuse, as defined in section 518B.01, has occurred.

The Court is directed not to consider one of the above factors to the exclusion of all others. Additionally, disagreement between the parties as to whether there should be joint custody does not in itself constitute an inability of the parents to cooperate.

Custody and parenting time disputes can take a toll on both parents and children. If faced with such a dispute, it is imperative to seek legal advice as soon as possible.

– BSM