Child Custody - Placement & Visitation

Brandau & Waltz

Minnesota Child Custody Laws

At the time of a divorce, most parents will say that the last thing they want to do is cause harm to their child(ren) during the process.  While the courts have systems in place to resolve custody disputes, many parents try to work out these issues themselves and with the assistance of their attorneys.  To do that, you need to first understand the legal "terms of art" used in custody matters and to appreciate the various factors that a court looks at in making custody decisions.

Each state has its own definitions for the various terms used in custody matters.  It is important to know the terms and their meanings.  The following is a sampling of the terms and their meanings.  Under Minnesota law the following terms and definitions are important:

Legal Custody

Legal custody means the right to make decisions about the upbringing of your child(ren), including education, non-emergency health care, and religious training.  When you think of legal custody, think of a parent having the right and responsibility to sign for the child, giving authorization for something.  Familiar examples are authorizing medical care and treatment; registration for school or extra-curricular programs that require parental consent; and authorizing a child to obtain a driver's license.  These are the major decisions about your child's life. 

Legal Custody can be "sole" or "joint."  Sole is just what is sounds like - one parent has the right to make these type of decisions.  Joint legal custody means both parents have the equal right and responsibility to be involved in the major decisions requiring parental consent and authorization.  That is not to say that both parents have to sign all documents, both parents need to confer before either signs a legal document on behalf of the child(ren).

Physical Custody

Physical custody deals with the residence and daily care and control of the child(ren).  The parents can share "joint physical custody" and both be involved in the child(ren)'s daily care or one parent can have "sole" physical custody and be primarily responsible for the child(ren)'s care and control.  This is the area that deals with the day-to-day decisions.  If parents share joint physical custody they are also sharing the time the child(ren) have to be with either parent.

Parenting Time

There are many names for where a child lives, lays his or her head at night, but in Minnesota the term is parenting time.  This is the schedule that each parent has with their child(ren).  It can be creative, simple, or complex.  When the parents work out their own schedule they can look at what they believe is best for the child(ren) and their own schedules.  There is no one perfect schedule. 

Early Neutral Evaluation (ENE)

The State of Minnesota has initiated a program with the hope of assisting parents in reaching custody/parenting time settlements.  As the name suggests, this program takes place early in the divorce process.  ENE is voluntary alternative dispute resolution for custody/parenting time issues.  The program works in conjunction with the Initial Case Management (ICM) conference that is scheduled by the court.  At that conference, the ENE is set to take place within seven (7) days of the ICM conference.  It is an informal setting where the parents, their attorneys, and  a two person team (male-female) spend from one to three hours discussing and working toward a solution for custody/parenting time issues.  If a resolution is not reached in that initial session, as second session can be scheduled.  A report is sent to the court within 30 days of the initial ENE session advising whether a settlement has been reached.  The philosophy of this program is that parents know their child(ren) and they should be the primary decision makers about how the child(ren) will be cared for after a divorce.  This is new program that is likely to encounter some adjustments over time, so it is important to discuss with your attorney what the process is and how to prepare for ENE, if it is needed in your case.

Guardian Ad Litem (GAL)

The simple definition of Guardian Ad Litem (GAL) is a person appointed by the court to advocate for the child(ren)'s best interests.  In Minnesota, GALs are usually non-attorneys who have been trained in their rights and responsibilities in representing child(ren) during the divorce or post-divorce process.  GALs may be appointed by the court when custody and parenting time is at issue, however their is no requirement that a GAL be appointed in all such cases.  A GAL is required to be appointed in all cases where custody and parenting time are disputed, if the court "has reason to believe" that the child is a victim of domestic child abuse or neglect as defined by statute.  The responsibilities of the GAL, if appointed, is to conduct an independent investigation that can include interviews with relevant persons, home visits, and review of relevant records.  The GAL is to maintain confidentiality of information except as permitted by law to promote a resolution of the issues.  GALs are to advocate for the child(ren)'s best interests and to monitor the best interests during the court proceedings.  Finally, GALs present written reports on the child(ren)'s best interests and the GAL makes recommendations based upon the facts of the case.  The key to remember when a GAL is appointed is that it is not their job to agree with either parent.  Their responsibility is to look out for the best interests of the child.  It is important when dealing with a GAL to understand their role and to work with your attorney to be prepared to assist the GAL in determining what is in the child(ren)'s best interests.  The court has the authority to order one or both parents to pay the fees associated with the appointment of a GAL.

Parenting Time Expeditor

A parenting time expeditor is a person trained in alternate dispute resolution (ADR) who is either appointed or, in some cases, chosen by the parents (with subsequent court appointment) to assist in resolving parenting time disputes.  This can occur during or after the divorce.  When a parenting time expeditor is appointed by the court, the parents present issues related to their parenting time schedule to the expeditor for resolution.  The expeditor attempts to resolve the situation with the parents, but if the issue is not resolved by the parents, the expeditor has the authority to interpret the court orders and make a decision consistent with the existing court orders on parenting time.  A parenting time expeditor can be a good resource for some families where issues seem to continue.  Some court orders are not as specific as others and it can be useful to get the schedules clarified with the help of an expeditor, if the parents and their attorneys are unable to resolve the issues themselves.  Use of a parenting time expeditor can be initiated by the court, by stipulation of the parties, or by a request by one party.  The court is not required to appoint an expeditor if one of the parents claims to be a victim of domestic abuse by the other; the court has probable cause to believe that one parent or a child of the parties has been the subject of or threatened with physical abuse; or a party is unable to pay the costs of the expeditor.  Parenting time expeditors are paid by the parents based upon a court order that apportions that costs based upon the circumstances.

The definitions above, are just a sampling of the things a parent needs to know when a divorce involves the custody/parenting time of child(ren).  Each case has its own unique facts that will have an impact on the decisions made by the parties and the court.  Working with an attorney, like  Ann I. Brandau, will help a parent make knowledgeable decision, negotiate a fair settlement, or present the legal matters appropriately to the court.  Ann keeps the legislative mandate in mind that all child custody judgments are to be based on an evaluation of what is in the child(ren)'s "best interests."  If you care about your child(ren) not only surviving the divorce, but being emotionally healthy during and after the process, then you will also want to make decisions based upon your child(ren)'s "best interests."

Attorney Ann Brandau represents clients throughout Minnesota, and most frequently handles cases for residents of the Twin Cities, Minneapolis, St. Paul, as well as Bloomington, Eagan, and the surrounding metro area, and southeast Minnesota including La Crescent, Freeburg, Spring Grove, New Hartford, Winona, Witoka, Wilson, Bratsberg, and Dakota, Minnesota.