Understanding the Different Types of Child Custody in Minnesota

When a couple gets divorced, they have to reorganize almost every part of their lives. When they have children, it means reorganizing their children’s lives too. When you are trying to make a child custody agreement or get a court order, you’ll soon find out that — because lawyers seem to like to make things complicated — there are different types of child custody in Minnesota. The word “custody” has several meanings in Minnesota’s custody laws. First, state law distinguishes between “legal” and “physical” custody. It also identifies “joint” and “sole” custody arrangements.

To add what can feel like yet another complication, even if divorcing parents are able to agree on a custody plan, state law requires a judge to evaluate whether or not the plan is in the “best interests of the child.” In the end, this is a good thing: Minnesota’s family laws put children’s interests ahead of almost anything else in a divorce case. But understanding the various laws involved can be frustrating (at best!).

Below I give you an overview of what these laws mean, and try to make sense of some of the legalese. But if you’re still not sure how the custody laws might apply in your divorce, you’re not alone. The law is complicated, and I’d definitely encourage you to reach out to a child custody lawyer for advice.

Best Interests of the Child

Judges in Minnesota cannot approve an agreed custody plan unless they believe that it is in the child’s (or children’s) “best interests.” If the parties cannot agree on a plan, and they ask the court to decide, the judge must include an evaluation of “best interests” as part of their order. This often involves looking at nearly all aspects of the parents’ relationship with the children and with each other, along with many other factors.

The term “best interests of the child” does not have a quick or easy definition. Judges have to decide based on each child’s unique circumstances. Section 518.17 of the Minnesota Statutes establishes several presumptions to guide courts in their evaluations, including:

  • That having “safe, stable, nurturing relationships [with] both parents” is in a child’s best interests; and
  • That both parents are able to have and maintain this sort of relationship with their child, “unless there are substantial reasons to believe otherwise.”

This section of Minnesota law also provides a list of twelve factors that courts must consider regarding a proposed custody plan and the child’s best interests. It is not meant to be an exhaustive list, meaning that courts can consider other factors if it is appropriate under a case’s specific circumstances. The factors identified in § 518.17 include:

  • The child’s needs. This may include general emotional or spiritual needs, like where the child is likely to be happiest; and specific medical or educational needs, like where certain resources are most readily available.
  • Each parent’s history with the child, including “participation in providing care for the child.”
  • The impact that a proposed custody plan will have on the child’s relationships with parents, siblings, and other individuals.
  • History of domestic abuse and other issues of concern.
  • The “willingness and ability of each parent” to care for the child and “to cooperate in the rearing of their child.”

Physical vs. Legal Custody

This type of custody distinguishes between the day-to-day routine of raising a child and the broader decisions about a child’s care and upbringing. “Physical custody” refers to the day-to-day aspects, includes the right to determine where and with whom a child lives.

Typically, a child resides with one parent most of the time, and has regular visitation with the other parent. Some parents are able to manage a roughly 50/50 custody split, meaning that the child lives with each parent an equal amount of time. This can work if both parents live close to one another and to the child’s school, and are able to exchange the child regularly without difficulty.

The popular image of divorced parents is often that of two people who can barely stand to be around each other. Thankfully, this is not the only reason an equal custody division might not work. Not all parents are able to do a 50/50 split, for an almost-infinite number of reasons. The popular image of divorced parents is often that of two people who can barely stand to be around each other. Thankfully, this is not the only reason an equal custody division might not work. One parent’s job, for example, might prevent them from living close enough to the other parent. In those cases, state law expects parents to do everything they can to ensure that the child has regular contact with both parents.

“Legal custody” refers to parents’ rights to make the big decisions about raising their child. The statute mentions “education, health care, and religious training.” This type of custody is particularly important for children with any sort of special needs, such as ongoing medical care or therapy. It can also involve children’s hobbies and extracurricular activities, ensuring that children get the support they need in order to found a company or go to the Olympics later in life.

All of the scenarios described in this section assume that the parents have “joint” custody of the child. Further explanation of that term is necessary.

Joint vs. Sole Custody

Under Minnesota law, “joint” custody of a child means that both parents have rights and obligations. The word “sole” does not actually appear in the section that defines joint custody, but it is commonly understood to be the opposite of “joint.”

Parents who have joint legal custody of a child “have equal rights and responsibilities” to make the big decisions. An ideal example of joint legal custody might consist of parents who collaborate on long-term planning for their child’s health and education, who consult with one another on major decisions, and who keep one another promptly informed of important developments.

Joint physical custody refers to a situation where a child’s residence and daily routine are “structured between the parties.” The 50/50 custody split described earlier is a classic example of joint physical custody. That said, § 518.17 states quite clearly that it “does not require an absolutely equal division of time.” As discussed, an equal division is often not practical, and could cause more problems for a child than it solves.

Sole custody means that only one parent has certain rights. Sole legal custody makes one parent responsible for the big decisions. Sole physical custody gives one parent the exclusive right to determine where a child lives (to a point – moves out of state or that would interfere with the other parent’s parenting time still require court approval or agreement by the other parent). The other parent may still have a right to visitation with the child, and to be informed about information on education, health, and other matters.

A court order granting sole custody to one parent often happens after wrongdoing by the other parent, such as domestic abuse. It should not, however, be a reward to the parent with sole custody, or a punishment for the other parent. It should only ever be a decision based on the child’s best interest. Rather than thinking of it as a parent without physical custody having a right to visitation, it is better to think of it as a child having an interest in being able to see that parent.

Anthony Toepfer is a family law attorney in St. Cloud, Minnesota who represents people during profoundly difficult times in their lives. He advocates for his clients both in and out of the courtroom in cases involving divorce, custody disputes, and other family law matters. At Toepfer at Law, you will always have access to the latest information about your case, and we are always available if you are uncertain about where things stand. Please contact us today through our website, or give us a call at (320) 497-4416 to schedule a confidential consultation to discuss your case.


Meet Tony Toepfer

Attorney Anthony (Tony) Toepfer began his legal career in the area of business and technology law. While successful in that field, he felt there was something missing. He turned down opportunities, because, as he says, “I wanted to see the faces of the people I was helping.” He transitioned into family law practice, and found what he was looking for.

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