Child Custody

Physical and Legal Custody

• Physical Custody is where the children live on a day‐to‐day basis.
• Legal Custody is the decision‐making process by which choices are made regarding religious upbringing, medical care providers, elective medical procedures, schools, extracurricular activities and other issues.

Joint and Sole Custody

• Sole legal custody is where one parent has the exclusive authority over decisions and sole physical custody is where the children primarily reside.
• Joint custody is a decision to share parenting of the children. It does not have to be 50/50 custody to be labeled joint custody.

When parenting time, which does not get shared on a relatively equal basis, is called “joint custody” the term is often a semantic device that is used to settle a case or make one parent feel as if they are not left out of the parenting process. Sometimes when parents share “joint” custody as a label, it is helpful to designate a “primary parent”. Another option is to consider a Parenting Plan (see above).

The law regarding the determination of custody mandates the court to do what is in the “best interests of the child”. The courts generally try to maintain stability for the children by examining how the parenting tasks were divided prior to separation, the mental and physical health of the parents, whether there are issues of concern that affect a caregiver’s ongoing ability to care for the children and any other issues that are important to determining what is best for the children.

The Judges and experts do not generally ask the children where they want to live. If a child has a preference that he or she wishes to express and if the child is deemed old enough to express a preference, then judges and experts will give that appropriate consideration. However, it is more common for custody experts, called custody evaluators, to interview children, determine how the thirteen legal factors provided for by statute are effected in each case and make recommendations to the Judge regarding what type of custody and what pattern of parenting time (formerly called visitation) are in the children’s best interests.

Children do not have an automatic right at or after age 12 to decide where they will live.

The preference of a child is only one of thirteen factors examine by the court. The age at which a child can express a preference is determined on a case by case basis. The Court will generally seek to determine if the child is mature enough to express an opinion. Generally, most children under the age of 10‐12 are not considered reliable reporters of preference.

Custody evaluations may be needed when the parents cannot agree on what parenting arrangements are in the best interests of the children.

Generally, there are two routes by which a custody evaluation can be obtained.

• One route is where both parents hire different experts who make recommendations to the Court. Such experts may make recommendations based on their advocacy for the parent who hired them. This route is not typically used any more in the Minnesota courts. It has fallen out of favor because it is seen as a litigious process that is more likely to result in a trial. Also, the Minnesota courts favor processes that are more likely to lower the cost of litigation and result in settlement instead of trial. The cost of a custody evaluation is expensive and dual evaluations are viewed as inconsistent with the process of encouraging settlement.
• The other route is where the parents agree on one neutral expert who will make recommendations regarding what parenting arrangements are best for the children. A neutral expert is expected to make recommendations that emphasize what is best for the children without advocating for either parent.

Custody evaluations are performed by either a private evaluator or by evaluators that work for the County in which the case is filed. County evaluators generally work through the Department of Court Services. Due to financial cut backs impacting the courts, some counties have eliminated such evaluations except in specific instances where the issues of the case and the financial resources of the parents warrants intervention. Evaluations performed by the Department of Court Services are generally performed for free or for a minimal fee. Private evaluations are expensive. In the metro area, a neutral evaluation performed by a qualified forensic psychologist can cost between $8,000‐$15,000 depending on whether a written report is needed and excluding trial testimony.

The difference between a private evaluation and an evaluation performed by court services is not only cost. A private evaluator is expected to do a more detailed and thorough process of evaluation. It is expected that they will spend more time with the parents, children and perhaps with collateral witnesses such as teachers, daycare providers and counselors for the parents and children. They will typically perform psychological evaluations on the parents and often will do some formal assessment of the children. All of this extra work is what makes their service expensive.

An evaluator at the Department of Court Services is not generally able to spend the same amount of time on a custody evaluation as does the private evaluator. It is not possible given their caseloads. They generally do not perform psychological testing as part of an assessment of the parents and children. Notwithstanding, these experts often have the same highly developed intuitive ability as the private evaluators in knowing which facts of each case are the most important ones. A Court Services evaluator may reach the same conclusion as a private evaluator on the straight‐forward cases. It is on the more complex cases that the private evaluator may provide a more in‐depth look at the 13 factors for determining custody simply because they have more resources available to them.

Minnesota Statute § 518.157 requires that parents who have children together and who are getting divorced must attend a divorce education program if they have contested custody or parenting time issues. Education programs are designed to give parents and children the opportunity to understand the impact of separation and divorce on children and to provide parents and children with techniques to minimize conflict.

The requirements for education vary based on the county where you reside. There may be minor costs associated with these requirements. Some counties may also require separate courses for children and parents. Most counties provide a list of programs which meet that county’s requirement for the parenting education classes along with the Order issued after parties attend their Initial Case Management Conference (ICMC).

Educational requirements for each county may be seen below. If you would like to attend a different divorce education program that is not listed below as an approved program in your county, contact the judicial officer assigned to your case to find out if they will accept the certificate of attendance from your desired program. Please note: It is best to confirm with court administration or your judge’s clerk that you are taking the course(s) that satisfy the court’s requirement before you register for and complete the course.

County	Required in Contested Cases only	Required if SENE is ordered	Programs Accepted by County
Anoka Contact:  (651) 259-3888	Case by case basis decided by the judge.		Parents Forever Program www.extension.umn.edu/family/parents-forever/
Carver Contact:  (952) 361-1420	Parenting education classes are required regardless of whether custody/parenting time is contested.	No.  If parties are doing an SENE, no parenting education class is required.	Parents Forever Program www.extension.umn.edu/family/parents-forever/Parenting Kids through Divorce (612) 296-8676 www.parentdivorce.comThe Co-Parenting Program – Two divorce education seminars are offered through the Headway Emotional Health Services: (1) Co-Parenting; or (2) L.E.A.D. (612) 861-1675 www.headway.orgThe Shared Parenting Program (612) 870-2426 www.chrysaliswomen.orgErickson Mediation (952) 835-3688 www.ericksonmediation.com
Dakota Contact: (651) 438-8110	Case by case basis decided by judge.	Typically, all con-tested cases are ordered to have SENE and then judge would decide whether a class is required.	Same as Carver County.
Hennepin Contact: (612) 798-8181	Yes.  Parenting education is only required in contested cases.	Yes.  SENE does not change the parenting education require-ment.	Divorce Education Class: Headway Emotional Health Svcs. (612) 798-8181 www.headway.orgParents Forever Online Course www.extension.umn.edu/family/parents-forever/
Ramsey Contac: (651) 266-2842	Yes.  Parenting education in only required in contested cases.	Yes.  SENE does not change the parenting education require-ment.	Parenting Kids through Divorce (612) 296-8676 www.parentdivorce.comThe Co-Parenting Program – Two divorce education seminars are offered through the Headway Emotional Health Services: (1) Co-Parenting; or (2) L.E.A.D. (612) 861-1675 www.headway.orgThe Shared Parenting Program (612) 870-2426 www.chrysaliswomen.org
Scott Contact:  (952) 496-8208	Yes.  Parenting education is only required in contested cases.	Yes.  SENE does not change the parenting education require-ment.	Parents Forever Program www.extension.umn.edu/family/parents-forever/Headway Emotional Health Svcs: (612) 861-1675 www.headway.org
Washington /Wright	In most family court cases that address the custody of children/parenting time, the court will require the parties to complete an educational program.	Case by case basis decided by the judge.	“May attend any formal program in any county that is recognized as meeting the requirements of a court-ordered class.”  Advised to seek approval as to whether it qualifies. There is a program in Wright County through J.O.Y. Center (763) 295-4302 www.joycenteronline.com

Many of the counties allow Court approved online parenting classes for separating and divorcing families.

The courses have been adapted for online presentation from the nationally acclaimed Parents Forever program, a research‐based program designed and tested by educators at the University of Minnesota, for parents going through divorce. It encourages parents to negotiate their divorce decisions without putting their children in the middle of their issues or forcing the children to choose one parent over the other.

The classes are convenient and inexpensive and are accessible to them 24 hours a day, 7 days per week. Upon completion of the course and passing of the final examination, a certificate of completion is immediately e‐mailed to the participant showing the course taken, the date of completion, participant’s name, and their case/cause number. This certificate can be printed out for submission to the Court if required.

The following courses are currently offered online, which meet the minimum standards for court mandated education requirements. Most jurisdictions require a minimum 4 hour class while others require 6 hours. The six hour requirement may be met by taking both the Impact of Divorce on Children and the Impact of Divorce on Adults:

Current Course Offerings:

• Impact of Divorce on Children, 4 hours, Cost $39.00
• Impact of Divorce on Adults, 2 hours, Cost $18.00
• Both courses, 6 hours, Cost $50.00

For additional information, please visit the Parents Forever website at http://www.extension.umn.edu/family/parents-forever/courses-for-parents/online-course-for-parents/registration-and-access/

Parenting Plans

As we entered the new millennium the legislature decided that it was time for parents to have the option of entering into “Parenting Plans” as an alternative to the traditional custody designations. Parenting Plans must be used in lieu of a custody designation where both parents request it.

The use of a Parenting Plan is voluntary to the parents. It may also be ordered by the Court, unless there is domestic abuse or it is a paternity case.

A parenting plan must specify a schedule of time that each parent will spend with the child. There must also be a designation of decision‐making responsibilities regarding the children. These two factors replace the traditional legal and physical custody designations.

In addition, there must be a stated method by which parenting disputes will be resolved (e.g. mediation, parenting consultant, etc.).

Parents may include other issues regarding the child in their parenting plans, such as what will happen if there is a move by one or both parents.

There is a requirement for the designation of legal and physical custodians in the final divorce decree for the sole purpose of enforcement of the decree in another state or in a country that requires such designations to enforce the decree. This is because not all states acknowledge and accept parenting plans as a legal form of custody. The designation can be sole or joint legal and sole or joint physical custody.

Parenting Plans are helpful because it provides a framework under which the changing needs of the child can be addressed without the costly and challenging provisions of the modification statutes. Changes to a parenting plan incorporate the best interests of the child and allow the order to be adapted to conform to the needs of the child. Parenting plans also do not engage the words “custody” and provide for a more fluid form of parenting, even though one parent may be the primary residential parent.

Parenting Time

• The term visitation is no longer used in legal proceedings. The term has been replaced by the term “parenting time”.
• This transition is similar to what happened in the early 1970’s when the term “alimony” was changed to “spousal maintenance”.
• It is an effort by the legal system to use kinder, gentler words with the hope that the use of softer words will have a corresponding impact on the litigants.

Parents who have difficulty communicating with one another may find it helpful to use a Parenting Time Log or an online service, such as Our Family Wizard, that is designed to allow parents to effectively communicate information about the children without speaking to one another or emailing. These devices can minimize conflict, especially in high conflict cases.

Parenting Consultants (also called PC’s) are available to assist parents in addressing problems in communication between the parents, establishing and modifying parenting plans and more.

Many parents need a bit of help for a short period after the parenting order is finalized. Until the emotional dust of the divorce settles and the parents are able to develop a rhythm of parenting that works for them and their children a Parenting Consultant can help with difficult transitions. In these cases a Parenting Consultant can be put in place for a limited period of time with an expiration date for such service in the Judgment and Decree or other Order.

Some parents are unable to transition into a pattern of cooperation and are stuck in high conflict patterns that require ongoing long‐term interventions. These parents need a decree that puts a Parenting Consultant in place for the duration of the minority of the children.

PC’s are neutral to the process, focusing on the needs of the child and how they can best assist the parents in doing the same. They provide a form of personal involvement in the process of parenting patterns, unlike the court process which is not equipped to have personal interaction.

Typically the parenting consultant will start by working with the parents to help them mediate their issues (including holidays, scheduling activities, religious training, educational issues and other matters regarding the children). If mediation fails the parenting consultant is given the authority to arbitrate and make the final determination of what will occur.

Parenting consultants are a form of Alternative Dispute Resolution. Their role is not provided for by statute. The cost of the parenting consultant is typically paid by both parties equally but a different payment plan can be arranged by the parents.

There are many individuals who serve as parenting consultants. It is important to use a Parenting Consultant who has the skills and expertise to assist the special needs of your case. There are many PC’s who do not have the skills, knowledge and/or experience to be a Parenting Consultant.

At Olup Law we help our clients find Parenting Consultants with the skills, knowledge and experience to help you with your parenting challenges.

A parenting time expeditor is an individual who is named in a court order to provide assistance to parents by enforcing, interpreting, clarifying and addressing circumstances not specifically addressed by an existing parenting time order. If necessary the parenting time expeditor (PTE) can determine when an existing parenting time order has been violated. The laws governing the obligations and duties of the parenting time expeditor are set forth under the law at 518.1751

Generally, the parenting time expeditor is advised by each parent regarding the issue and then the PTE will make a determination of what will take place or whether the order was violated.

The work of a parenting consultant incorporates the work of a parenting time expeditor. However, the parenting consultant has a broader range of tools available to assist the parents. The role of a PTE is limited by law. Parenting time expeditors are paid by the parties.

There are many individuals who serve as parenting time expeditors. If one of the attorneys at Olup Law is not able to assist you as a parenting time expeditor because we represent you on your legal case we can refer you to individuals with the skills and experience to assist you.

By law, a guardian ad litem may be appointed in cases with contested custody and parenting time issues to advise the court regarding custody and parenting time.

• A guardian ad litem must be appointed if the court believes that the child is a victim of domestic abuse and/or child neglect.
• The guardian is expected to perform an independent review of the case. They are expected to advocate for the child and monitor the child’s best interest throughout the case, including participating in appropriate aspects of the case.
• Guardians are expected to prepare a written report for the court and to provide a factual basis for their opinion.
• Guardians appointed under the law are either volunteers or paid by the county.
• Guardians may also be appointed by the agreement of the parents. The payment of fees for such services is set forth in the agreement.
• The Court can usually provide parents with a list of recognized guardians who work for that county.

Child support can be collected directly by the parent to whom it is paid, or it can be collected on behalf of the parent by the Minnesota Child Support Payment Center (Parents mail payments to: P.O. Box 64326, St. Paul, MN 55164-0326. Employers mail payments to: P.O. Box 64306, St. Paul, MN 55164).

To pay support directly to a parent requires either the consent of the parent who will be paid, or the deposit of a sum equal to 2 months payments of child support into an account controlled by the state. The account is established as security in case the parent paying support fails to make the payments as required. Parents often waive this requirement and agree that so long as payments are current that they can be paid directly.