Child Custody | Sterle Law

Legal and physical custody must be determined for the children. Initially, a custody determination is based upon the “best interests of the child,” which is an examination of 12 factors set forth in Minnesota law. If custody was established in the past, then custody can only be changed by written agreement or by showing physical or emotional harm or endangerment to the child under the current arrangement.

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Common questions about child custody

How to get full custody of a child?

First, a parent has to identify what type of custody he or she is seeking custody. In Minnesota, there are two different types of custody – legal and physical custody. Legal custody involves making medical, educational, religious and other significant decisions for a child. Physical custody involves who is going to take care of a child’s daily needs. In Minnesota, a court must weigh the best interests of a child when considering legal custody and physical custody of that child. The best interests’ factors are comprised of twelve separate factors which are:

a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
the reasonable preference of the child, if the courts deem the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;
any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
the history and nature of each parent’s participation in providing care for the child;
the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
the effect on the child’s well-being and development of changes to home, school, and community;
the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;
the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

A parent wanting to establish legal and physical custody must serve on the other parent a Petition to Establish Custody and Parenting Time which then needs to be filed with the court in order to initiate this type of court case. Eventually, an Evidentiary Hearing, or Trial, is held for the judge to decide who gets what sort of legal and physical custody unless the parents can settle these issues.

How to get custody of a child?

Unless parents can agree, Minnesota law requires a judge to decide who should have legal or physical custody by weighing the best interests of a child. The best interests are determined by examining:

a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
the reasonable preference of the child, if the courts deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;
any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
the history and nature of each parent’s participation in providing care for the child;
the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
the effect on the child’s well-being and development of changes to home, school, and community;
the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;
the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

Minnesota law requires a judge to schedule a Trial, or an Evidentiary Hearing, for the parents and their witnesses to testify about these factors and for the parents to present Exhibits, or evidence, that supports their wishes. In the end, the judge will be the one to take this evidence and make a ruling on legal and physical custody. Custody cases are one of the most difficult and emotional court cases a person can go through so consulting with, if not retaining, an attorney is strongly encouraged.

What do judges look for in child custody cases?

Minnesota judges consider a significant amount of information when deciding custody cases. The key to any judge’s decision is the twelve best interests factors. A parent anticipating or are current are going through a custody case should strongly consider retaining an attorney to spend time knowing each factor and thinking through how to convince a judge the factors favor his or her case because custody cases are complex.

Who claims child on taxes with 50 50 custody? Do you pay child support with joint custody? Can a non-custodial parent claim the child on taxes?

A non-custodial parent cannot claim a minor child for taxes under IRS tax Code or under Minnesota law unless the parents agree to it. They will want to sign IRS tax form 8332 laying out this agreement should the IRS audit one or both of the parents. Otherwise only the custodial parent claims the child for taxes whether for a deduction, exemption, tax credit, head of household or earned income tax credit.

Parents sharing legal and/or physical custody would address how to claim their children for taxes in their initial custody case. Custodial parents generally agree to alternate claiming their children for taxes on an every other year basis so they both share in the tax benefits.

Any disagreements about how to claim children for taxes that cannot be worked out between the parents must then be addressed in court as a judge will decide who claims the children and in what years they can be claimed.

Child support is not calculated based on custody. In Minnesota, it is based on a number of factors including the parents’ gross monthly income, the costs the parents pay for daycare and health insurance for the children as well as the number of court-ordered overnights the parents have over a two year period of time. The best way to learn more about child support and how it is calculated is by reviewing the following link – https://childsupportcalculator.dhs.state.mn.us/.

How to change jurisdiction for child custody?

A parent wanting to change the state or county in which a custody case has taken place must file a Motion for Change of Venue in that same county. Minnesota Statute Section 542.11 states a judge can order a Change of Venue if:

The venue of any civil action may be changed by order of the court in the following cases:

upon written consent of the parties;
when it is made to appear on the motion that any party has been made a
defendant for the purpose of preventing a change of venue under section 542.10;
when an impartial trial cannot be had in the county wherein the action is pending; or
when the convenience of witnesses and the ends of justice would be promoted by the change.

This sort of case is complex especially if the Motion for Change of Venue involves the case possibly moving to a different state so consulting with an attorney is vital.

Will police enforce child custody?

Law enforcement is supposed to enforce any court Order from any state; however, do not count on law enforcement to do so. Each officer has the discretion on how to respond to a call for service. Some officers will enforce the Order and have the parent withholding the children return them to the other parent. Some officers will tell the parents their custody dispute is a civil matter and they need to go to court to have a judge address their disagreements.

Can child support be stopped by a custodial parent?

If there is no court order that says who is supposed to pay child support because the parents have an informal agreement, then child support can certainly be stopped. When there is a court Order requiring child support be paid, then it must. Failure to follow the child support Order in Minnesota can lead to a Motion for Contempt of Court, loss of a passport and hunting and fishing privileges and in some cases jail time.

Yes, a parent can stop paying child support although the purpose of it is to financially support a child. The child is the one who may suffer if child support is not paid.

When can a child refuse visitation with non-custodial parent?

In Minnesota, a non-custodial parent who does not have a court order giving him or her parenting time has no legal right to parenting time. Is this fair? No, but this is the law. Non-custodial parents who do not have court-ordered parenting time, unless he or she wants to try to negotiate specific parenting time with the custodial parent, should serve and file a Petition to Establish Custody and Parenting Time to involve a judge in this situation.

What is also important for non-custodial parents to know is that unless an unmarried father in Minnesota has a court order declaring him a legal parent of a child, the child does not have a legally recognized father. This can be so damaging because not having that parent legally recognized will make it difficult for the child to receive Social Security death benefits and rights to inherit from the non-custodial father. Unmarried fathers ought to consider consulting with an attorney to learn how to legally be determined as father so a child’s rights are protected in the future.

You could also address mothers and fathers directly from a Minnesota law perspective.

Child Custody Information for Mothers

How to win a child custody case for mothers?

Minnesota law does not favor mothers or fathers. In 2015, the Minnesota legislature made some changes to what a judge has to consider to determine which parent should have legal and physical custody and if any custody should be shared. Judges have to weigh:

a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
the reasonable preference of the child, if the courts deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;
any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
the history and nature of each parent’s participation in providing care for the child;
the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
the effect on the child’s well-being and development of changes to home, school, and community;
the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;
the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

A mother’s needs to know these factors and do what she can to try to prove how as many factors as possible favor her including making the children’s medical appointments and taking the children to those appointments, attending parent/teacher conferences, encouraging the children to become involved in school activities and limiting the use of babysitters for non-work reasons, if possible. The factors focus on maximizing their time and attention to their children a mother needs to highlight what she has done in the past for her children and what she will continue doing in the future.

How can a mother lose custody of her child?

Minnesota law says that a parent endangering their children may lose legal and/or physical custody. A mother may lose legal and/or physical custody if she is using illegal drugs, misusing prescription drugs or is not seeking help or treatment for a diagnosed mental health issue. It could also mean a mother is in an abusive relationship where the children have witnessed that abuse and are negatively affected by it.

What is important to keep in mind is that judges want to see parents be the best parents they can be and become and stay sober, get help with their mental health and be in safe relationships. A mothers who can show she is seeking help and sincerely wants to provide a safe environment for their children stands the best chance in court in keeping custody of the children.

Child Custody Information for Fathers

How to win child custody for fathers?

Minnesota law used to be more supportive of mothers getting or keeping legal and/or physical custody. Not anymore. In 2015, the legislature passed a law that says both parents must be treated equally and judges cannot assume who is more of a parent. Legally, fathers in this state have the best opportunity to obtain joint legal custody and physical custody.

Fathers need to know the 12 best interests factors judges must use when determining who should have legal and physical custody. Those factors are:

a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;
any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;
the reasonable preference of the child, if the courts deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;
whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;
any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;
the history and nature of each parent’s participation in providing care for the child;
the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;
the effect on the child’s well-being and development of changes to home, school, and community;
the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;
the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;
except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and
the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.
The more involved fathers are in their children’s lives and spend as much time as possible with them increasing the likelihood of getting joint legal and joint physical custody.

How can a father get full custody of his child?

Minnesota Statute Section 518.18, subdivision (d) describes scenarios in which a parent’s legal and/or physical custody may be modified. Those scenarios are as follows:

both parties agree to the modification;
the child has been integrated into the family of the petitioner with the consent of the other party;
the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or
the court has denied a request of the primary custodial parent to move the residence of the child to another state, and the primary custodial parent has relocated to another state despite the court’s order.

Courts most frequently see a request to change custody unfortunately when there are claims of drug or alcohol abuse or when it is proven a child is being abused when it is the other parent’s care. It is not purposely challenging in Minnesota to change custody so consulting with a family law attorney when thinking about this issue is best.

If you would like more information about filing for child custody, please schedule an initial consultation appointment online and fill out the Consultation Intake Form.