English
EspañolMinnesota Custody
Custody
Basic info and definitions
What is custody?
Custody means you have the right and responsibilities of raising your child. There are two types of custody, legal and physical.
Legal custody means you have the right to make major decisions about how the child is raised. This includes deciding what school the child goes to, what health care s/he receives, and what religion s/he is taught.1
Physical custody means the child mostly lives with you. You take care of the child regularly and control his/her daily routine.2 The parent with physical custody is known as the “custodial parent,”3 and the other parent is known as the “non-custodial parent.”
1 Minn. Stat. § 518.003(a)
2 Minn. Stat. § 518.003(c)
3 Minn. Stat. § 518.003(e)
What is joint custody?
Joint custody means both parents share the rights and responsibilities of raising their child. There are two types of joint custody, joint legal and joint physical.
Joint legal custody is when both parents have the same rights to make major decisions about how the child is raised. This includes deciding what school the child goes to, what health care s/he receives, and what religion s/he is taught. 1
Joint physical custody is when the child lives with both parents at different times. Each parent takes care of the child and controls the child’s daily routine when the child is at his/her respective home.2
1 Minn. Stat. § 518.003(b)
2 Minn. Stat. § 518.003(d)
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to MN Finding a Lawyer to seek out legal advice.
Where can I find more information on custody in Minnesota?
The Minnesota Judicial Branch has links to court forms related to custody and parenting time.
Lawhelp.org provides information on custody, paternity, and parenting time.
The Minnesota Department of Human Services also provides information on parentage (paternity), which is geared for both mothers and fathers.
WomensLaw.org is not affiliated with any of the above websites. We provide the links for your information only.
The custody process
How will a judge make a decision about custody?
A judge will make a decision about custody based on what s/he thinks is in your child’s best interest.1 The judge will look at any factor that s/he thinks is important to make this decision including, but not limited to:
- the child’s physical, emotional, cultural, spiritual, and other needs;
- the effect of the proposed custody arrangements on the child’s needs and development;
- any special medical, mental health, developmental disability, 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 judge believes that the child has sufficient ability, age, and maturity to express an “independent, reliable preference;”
- if domestic abuse has occurred in either parent’s household or relationship:
- the nature and context of the domestic abuse; and
- the effect of the domestic abuse on:
- the abuser’s parenting abilities; and
- 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 caring for the child;
- the willingness and ability of each parent to:
- provide ongoing care for the child;
- meet the child’s ongoing developmental, emotional, spiritual, and cultural needs;
- be consistent and follow through with parenting time;
- cooperate in raising the child;
- maximize the sharing of information;
- reduce exposure of the child to parental conflict; and
- use methods for resolving disputes about any major decision in the child’s life;
- the effect of changes to the child’s home, school, and community on the child’s well-being and development;
- the effect of the proposed custody arrangements on the ongoing relationships between the child and each parent, siblings, and other significant people in the child’s life;
- the benefit to the child in maximizing parenting time with both parents;
- the harm to the child in limiting parenting time with either parent;
- except in cases in which domestic abuse has occurred, the willingness of each parent to support the child’s relationship with the other parent and to encourage and allow frequent and continuing contact between them;2 and
- whether or not a parent violated the criminal law against falsely reporting child abuse.3
Note: The judge is not supposed to consider the following things when determining the child’s best interests for custody and parenting time:
- the acts and behavior of a parent that do not affect the parent’s relationship with the child;4
- if a parent is in the military, the parent’s past deployment or possible future deployment;5
- the gender of each parent;6
- whether the parents were ever married to each other;7 and
- a parent’s failure to pay support because of the parent’s inability to do so.8
If you or your child has a disability, see If I or my child has a disability, will that affect the judge’s decision?
1 Minn. Stat. § 257.025(a)
2 Minn. Stat. §§ 257.025(a); 518.17(1)(a)
3 Minn. Stat. § 518.17(1)(b)(6)
4 Minn. Stat. § 518.17(1)(b)(4)
5 Minn. Stat. § 518.17(1)(c)
6 Minn. Stat. § 518.17(1)(b)(2)
7 Minn. Stat. § 257.025(b)
8 Minn. Stat. § 518.175(1)(c)
What factors will a judge consider when deciding if the parents should have joint custody?
If one or both parents are asking for joint legal custody, there is a “rebuttable presumption” for joint legal custody. What this means is that the judge will assume that joint legal custody is in the best interests of the child but either parent can present evidence to the judge to change his/her mind. However, if one parent has committed domestic abuse, this standard does not apply.1 See Can a parent who committed domestic abuse get custody? for more information.
1 Minn. Stat. § 518.17(1)(b)(9)
If I or my child has a disability, will that affect the judge’s decision?
If either you or your child has a disability, this is something the judge can consider but it cannot be the only factor that determines which parent should get custody.1
If you have a disability, the judge is not allowed to deny or restrict parenting time or custody based on this. If the other parent claims that your disability is a reason to change custody or your parenting time, s/he must convince the judge that specific behaviors of yours during parenting time would endanger the health or safety of the child. You can then show the judge that supportive parenting services would fix those issues. The judge can require you to use supportive parenting services for your parenting time.2
If the judge denies or limits your custody or parenting time based on your disability, the judge is required to issue a written order with specific reasons (findings) explaining the decision and why supportive parenting services cannot fix the issue.3
1 Minn. Stat. § 518.17(1)(b)(5)
2 Minn. Stat. § 518.17(2a)(a)
3 Minn. Stat. § 518.17(2a)(b)
Can a parent who committed domestic abuse get custody?
If one parent has committed domestic abuse against the other parent, there is a “rebuttable presumption” against the abusive parent getting any type of joint custody. What this means is that the judge will assume that both joint legal and joint physical custody are not in the best interest of the child. However, the abusive parent can still present evidence to try to change the judge’s mind and prove why s/he should get joint custody. In deciding whether or not the abusive parent has presented enough evidence to change the judge’s mind about joint custody, the judge will consider all of the following:
- the nature and context of the domestic abuse;
- how the domestic abuse affects the abusive parent’s parenting abilities; and
- how the domestic abuse impacts the child’s safety, well-being, and developmental needs.1
It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence. For information on how to find a lawyer see our Minnesota Finding a Lawyer page.
1 Minn. Stat. § 518.17(1)(b)(9)
Steps to file for custody
Considerations before filing
Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.
However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.
Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.
You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.
In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.
Step 1: Prepare for the case
Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.
You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.
Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.
Step 2: File and serve the custody petition
The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.
The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.
| If you and the other parent are… | Then you can usually file for custody in… |
|---|---|
| married and getting divorced | the divorce case. |
| married but not divorcing | a separate custody petition. |
| not married | a separate custody petition, but legal fatherhood (paternity) may need to be established first or during the custody case. |
Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, talk to a lawyer.
The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Minnesota Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.
Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for an order of protection and get temporary custody as part of the restraining order.
After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.
Step 3: Preliminary court dates
The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:
- problems with service of process;
- referrals to mediation;
- temporary custody and visitation orders; and
- pretrial motions.
During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.
For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.
Step 4: Reach an agreement or go to trial
There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.
Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.
Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.
Step 5: Options if you disagree with the order
If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.
You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:
- The other parent gets sent to jail or charged with child abuse or neglect;
- The other parent is not following the custody and visitation order; or
- Your child’s needs change in a big way.
After an order is in place
Can the non-custodial parent have access to the child's medical, health, and school records?
Both parents, regardless of who has custody, will have the following rights unless the judge takes them away to protect the welfare of the other parent or the child:
- the right to access and receive copies of school, medical, dental, and religious training records, police reports, and other important records and information about the child;
- the right to access information regarding health or dental insurance available to the child;
- the right to be told by the other parent of the name and address of the school the child attends;
- the right to be told by school officials about the child’s welfare, educational progress, and status, and to attend school and parent-teacher conferences. Note: The school is not required to hold a separate conference for each parent unless attending the same conference would violate a court order prohibiting contact between the parents;
- the right to be told by the other parent of an accident or serious illness of the child, including the name of the health care provider and the place of treatment;
- the right to reasonable access to the child, and to phone calls/texts or other electronic contact with the child; and
- the right to be told by the other parent if the child is the victim of a crime, including the name of the investigating law enforcement officer or agency. Note: There is no duty to give this information if the other parent is the person who committed the crime.1
1 Minn. Stat. § 518.17(3)(a), (3)(b), (3)(c), (3a)
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.
