This is the first in a series of "Top 10" questions and answers about family law topics that I will provide on my website.

I understand that having some general information about family law can sometimes make the difference between a good night's sleep and a sleepless night. Hopefully, answers to these questions will help reduce anxiety you may be having about your situation.

The information below can never take the place of competent counsel. The responses are intended to provide a frame work only for the most common questions I am asked so that you can have a better understanding of issues that may apply to your situation. The responses below are not legal advice and should not be relied upon to make decisions in your case.

For a free 30 minute phone consultation, please contact my office via the Contact page. Your inquiry is confidential.

Top 10 Questions & Answers: Minnesota Custody and Parenting Time
(Listed in no particular order of importance)

1. I was divorced in Minnesota. Now, I want to move out of the State of Minnesota with the children (due to job change, remarriage and new spouse's job relocation, etc.) Can I just move with the children and then deal with modifying the judgment and decree?

2. In Minnesota, can children decide where they want to live at age 14?

3. Do fathers have any real chance of being awarded physical custody?

4. Do the courts favor joint custody?

5. I don't have (or don't want) to spend a lot of money on attorneys and I don't want to turn parenting time with the children into a court battle. What are my options to save both money and the emotional cost of a trial over parenting issues?

6. My neighbor or friend had a bad experience in their own case and warned me not to agree to anything. I am confused about what to do and do not want to regret agreeing to something. Should I just let the court decide?

7. I am taking anti-depressants. Will this hurt me if the court decides custody and/or parenting time?

8. I believe that the other parent is harming the children during his/her parenting time. Can I just refuse to follow the court order to protect the children?

9. Do I have to set aside time I have with the children so they can spend time with the other parent's relatives?

10. The other parent is refusing to let me see the children or scheduling activities for the children during my parenting time without discussing this with me first. What can I do about the interference with my parenting time?

1. I was divorced in Minnesota. Now, I want to move out of the State of Minnesota with the children (due to job change, remarriage and new spouse's job relocation, etc.) Can I just move with the children and then deal with modifying the judgment and decree?

A: In Minnesota, a move out of state (also known as "change of domicile") with minor children when the other parent has parenting time requires either the consent of the other parent (in writing) or a court order granting the move. Moving first and then addressing modification of the judgment and decree is a violation of the existing court order.

The law in Minnesota concerning moves out of state with minor children changed a few years ago. The previous law presumed that the parent with "sole" or "primary" custody could move with the minor children if the move was for legitimate reasons and not to deny the other parent their parenting time with the children. The legal burden of overcoming this presumption was on the non-moving parent.

The law now requires a showing that a move out of state with minor children is in their "best interests" when the other parent has a court order with parenting time. The non-moving parent can still consent in writing to a move and a modified parenting time schedule. That has not changed.

What has changed is the standard the court will use in deciding whether to grant the move out of state if the move is contested. It is now the initial legal burden of the moving parent to establish that the move is in the children's "best interests." The non-moving parent then has the opportunity to demonstrate that the move is not in the children's best interests. Contested moves out of state (requiring court permission) will likely include an evidentiary hearing (testimony and evidence).

I have extensive experience with custody modification motions. Most often, the goal is to reach an agreement to modify custody or parenting time to avoid the necessity of expensive litigation through such methods as negotiation or mediation. If neither of theses methods result in an agreement, then it is important to choose an attorney with a solid grasp on the law and with significant trial experience.

Back to List of Questions

2. In Minnesota, can children decide where they want to live at age 14?

A: This is a question that I am asked more frequently than others given my experience in custody and parenting time cases.

In Minnesota, there is no "magic" age for a child to express a preference for custody and/or parenting time. The law states that a child must be of sufficient age (and maturity) to express a reasonable preference. It is important to remember that even if a child is at a sufficient age and mature enough to express a reasonable preference; it is one of the 13 factors in the "best interests" analysis.

A "reasonable" preference is generally interpreted as a preference that is independent, supported by valid reasons and not unduly influenced by a parent or third party seeking custody or parenting time. I have had cases where preferences of children as young as 12 have been considered and cases where children as old as 15 have not been considered.

The law in Minnesota recognizes that the preference, if any, of an older teenage child is a highly significant factor in deciding custody and parenting time. The reality is that ignoring the reasonable preferences of an older teenage child is in many ways, counter-productive. Still, even older teenage children do not have the power to decide over their parents what is in their "best interests." Generally, in cases involving older teenage children, parents recognize for themselves that some sort of modification of an existing court order is necessary to avoid further problems and can accomplish this by agreement.

Back to List of Questions

3. Do fathers have any real chance of being awarded physical custody?

A: The laws in Minnesota do not favor one parent over another based upon gender. The underlying standard for deciding issues involving minor children, including custody is the "best interests" standard. The "best interests" standard is made up of 13 factors. One factor is not more important than another factor.

The "best interests" analysis considers such factors as intimacy of the parent-child relationship, preferences of children of sufficient age and maturity to express a preference, the capacity of each parent to give love, affection and guidance, which parent, if either, has been the primary caretaker, the length of time a child has lived in a particular environment and the desirability of maintaining the continuity of that environment

Minnesota law is moving away from the label of one parent having "custody" and focusing more on "parenting time," the schedule of time each parent spends with the minor child or children during the calendar year, including holidays. A court decision on custody or parenting time is sometimes necessary when parents cannot resolve these issues, but judges will tell parents that they are in the best position to determine what parenting arrangement is best for their children.

I do not represent more "Moms" or "Dads" in cases involving custody and parenting time, both initially and post-decree. I view the most important factors in an attorney-client relationship as providing competent, responsive and personalized representation, regardless of gender.

Back to List of Questions

4. Do the courts favor joint custody?

A: Custody in Minnesota consists of "physical custody" (where the children reside) and "legal custody" (major decision-making such as religion, education and medical care). In Minnesota, joint legal custody is presumed to be in a child's best interests but the presumption can be overcome by a showing of various circumstances, including whether domestic abuse has occurred between the parents.

Joint physical custody in Minnesota used to be more exception than the rule, however, as both parents have become more involved in raising their children, in most counties, joint physical custody is no longer unusual. Joint physical custody does not necessarily mean 50/50 time with each parent. Joint physical custody can allocate time between parents on less than a 50/50 basis.

Back to List of Questions

5. I don't have (or don't want) to spend a lot of money on attorneys and I don't want to turn parenting time with the children into a court battle. What are my options to save both money and the emotional cost of a trial over parenting issues?

A: In Minnesota, parents can agree to a Parenting Plan. A Parenting Plan is a document that describes and specifies parenting time, decision-making and alternative dispute resolution methods in the event of future disputes that the parties are unable to resolve, such as mediation. A Parenting Plan can be as detailed as the parents mutually desire.

If parents agree to a Parenting Plan, the focus is on parenting time and not on custody labels. A Parenting Plan only requires a custody label for purposes of enforcement (in states that require a custody designation). If a parent seeks to modify a Parenting Plan, Minnesota courts will focus on the parenting time and not the custody label.

A Parenting Plan can be created at any time, before a case starts, after a case begins, in mediation of in other litigation alternatives such as an early neutral evaluation. Attorneys, mediators and early neutral evaluators can assist parents in reaching a Parenting Plan.

Back to List of Questions

6. My neighbor or friend had a bad experience in their own case and warned me not to agree to anything. I am confused about what to do and do not want to regret agreeing to something. Should I just let the court decide?

A: Whatever happened in your neighbor or friend's case has no precedent in your own case. Every case is different: the facts, the judge and the attorneys. The best way to control what happens in your case is by agreement with the guidance of counsel. The courts have limited time to spend on cases and even with knowledgeable and experienced attorneys as advocates, cannot know your children the way you do.

I tell my clients that my role as their attorney is to provide them with the knowledge to weigh risks and benefits in their cases so they can make informed decisions. I never guarantee a result by going to court. Reaching agreements through negotiation is a "give and take." I approach cases individually, starting by defining the most important goals of a client, what may be negotiable in an outcome, and then seeking creative problem solving to achieve those goals.

Sometimes it is necessary, despite best efforts, to have a judge decide custody and parenting time issues. Having an attorney that will first seek an out of court resolution but can back up proceeding in court with their experience as a trial attorney is an important consideration.

Back to List of Questions

7. I am taking anti-depressants. Will this hurt me if the court decides custody and/or parenting time?

A: Minnesota law focuses on the parent-child relationship in making custody and parenting time decisions. While one of the factors in the "best interests" analysis is the mental and physical health of all individuals (parents and children), taking anti-depressant medication does in and of itself impact the "best interests" analysis. In fact, it has been my experience that regularly taking anti-depressant medication to address mental health issues is viewed as responsible and pro-active. Unless mental health issues negatively impact upon the ability to parent a child, use of regular anti-depressant medication is not legally relevant in the "best interests" analysis.

Back to List of Questions

8. I believe that the other parent is harming the children during his/her parenting time. Can I just refuse to follow the court order to protect the children?

A: Minnesota law provides for emergency circumstances involving physical abuse or harm to a child through an Order for Protection. An Order for Protection is a remedy in cases where physical abuse, harm or neglect of a child is occurring or recent and emergency steps must be taken to protect the child.

In some cases, current or recent physical abuse, harm or neglect is either not occurring or does not rise to the level of proof necessary to seek an emergency order. A parent may be concerned about the other parent's neglectful behavior pattern with the children or claim that the other parent is emotionally abusing the children. These are concerns and claims that are harder to prove than physical abuse but may provide a basis for modification of an existing court order based upon endangerment.

I have found that the key to non-emergency modification of custody and parenting time cases starts with an evaluation of the case and a candid discussion with a client to determine whether the endangerment concerns and claims can be substantiated or are more about objections to different parenting styles. Minnesota law requires at least a preliminary showing of endangerment for a case to move forward. The legal burden for establishing endangerment as grounds for modification of custody or parenting time is a high standard. This is because the courts do not want parents coming back to court to modify court custody and parenting time orders for minor disputes.

To establish endangerment as a basis for modification, it is extremely important to provide the court with as much detail as possible in the form of an affidavit (written statement under oath) to meet the initial legal burden required of the parent seeking the modification. The most compelling affidavits that I have prepared on behalf of clients stay focused on what has occurred with the children and not on vilifying the other parent. Affidavits are also more credible by incorporating "neutral" and unbiased information such as school records when available. Various time limitations may also apply to custody modification motions.

Back to List of Questions

9. Do I have to set aside time I have with the children so they can spend time with the other parent's relatives?

A: Ideally, parents will mutually desire to promote and encourage a continued relationship between children and relatives with whom they share a bond. Maintaining stability and continuity for a child after the end of the parents' relationship can help the child with the family transition.

Generally, unless parents agree to set aside specific time for relatives (or non-relative third parties), the time the children spend with relatives or non-relative third parties falls within the regular parenting schedule. The court does have authority to order grandparent visitation rights if a parent is deceased, however, claiming these rights is subject to specific procedures and provisions in another section of the law.

I encourage parents to be flexible with a parenting schedule for special events and visits from out of town relatives, when possible and, for example, agree to "swap" or make up for missed time.

Generally, unless a relative or non-relative third party is endangering a child (physically, emotionally or by intentionally sabotaging a parent's relationship with a child); how a parent and child spend their parenting time cannot be dictated by the other parent. If a parent is consistently not spending time with a child but instead placing the child with relatives, the circumstances may warrant a modification of parenting time.

Back to List of Questions

10. The other parent is refusing to let me see the children or scheduling activities for the children during my parenting time without discussing this with me first. What can I do about the interference with my parenting time?

A: This question is one that has increased in frequency as children become more involved in extra-curricular activities such as sports, throughout the calendar year.

Under Minnesota law, significant and intentional interference with court ordered parenting time is subject to remedies and sanctions, including compensatory parenting time and monetary penalties.

As a practical matter, I have had cases where a court ordered parenting time schedule is considered the priority regardless of the children's extra-curricular activities and I have had cases where the court has determined that a reasonable accommodation for the children's activities is appropriate as long as the other parent is compensated for missed time.

The bottom line in cases of this type are that one parent cannot unilaterally decide to significantly interfere with the other's parenting time. At some point, parents inevitably have to address the growing maturity, interests and talents of their children. Mediation, other alternative dispute methods or attempts to resolve disputes are usually required before proceeding with motions in court.

Back to List of Questions

Disclaimer/Non-reliance. Online readers should not act or decline to act, based on content from this site, without first consulting an attorney or other appropriate professional. Laws applicable to your situation as reflected on this site may change and the application of laws to your facts and circumstances may produce different results. Nothing on this site predicts or guarantees future results. Napuck Law Offices, P.A. is not liable for the use or interpretation of information contained on this site, and expressly disclaims all liability for any actions you take or do not take, based on this site's content.