Did you know that the Minnesota Legislature has clarified that there is no presumption regarding custody except in cases of domestic abuse? This is an important change in the law that will go into effect on August 1, 2014. Minn. Stat. Sec. 518.17, subd. 2 has been amended to state, “There is no presumption for or against joint physical custody, except when domestic abuse, as defined in section 518B.01, has occurred between the parents.”
So what does a judge consider when a child’s parents cannot agree on custody? Some fathers may discouragingly assume that a judge will always award custody to the mother, when that is not true. In fact, Wilson Law Group’s family law attorneys have represented many fathers who have successfully obtained awards of sole custody and ample parenting time. Some parents may think that the child should decide with whom to live, a choice that can be extremely damaging to the child, as well as the parents. The correct answer is that a judge has to consider the “best interest factors” in Minn. Stat. Sec. 518.17, subd. 1. There are 13 factors, including the wishes of each parent, which parent has been the primary caretaker, the desire to maintain continuity for the child, and the child’s cultural background.
When considering joint legal or joint physical custody, MN judges must think about the parents’ ability to cooperate with each other while raising their child, their methods for resolving disputes when it comes to making major decisions about the child (and whether they are willing to work towards resolution), whether there is any detriment to the child if one parent has sole custody, and whether domestic abuse has occurred between the parents. The new law states that a judge cannot just consider one factor and exclude all other factors. Even though the parents disagree on whether they should share joint custody or if one parent should have sole custody, a judge cannot base his or her decision solely on the parents’ disagreement on that issue. The legislature explains in the new statutory language that the fact that the parents do not agree on the custody arrangement does not mean that they cannot cooperate in raising their child. Regardless of what the judge decides, she or he must make detailed factual findings as to each of the factors, and state how they formed the decision for a custody determination that is in the child’s best interest.
If you would like more information about a family law matter, please contact Wilson Law Group for a consultation with one of our family law attorneys.