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Minnesota Child Custody, Joint Custody and Child Support FAQ: What About Children

We cannot agree on who gets custody of our children. How does the court make a custody determination?

There are few issues in a divorce more emotionally charged than the proper placement of the children. When parents cannot agree on what is best for their children, the courts will decide child custody by determining what is in the "best-interest" of the children.

In most cases, county workers, custody evaluators, or an independent Guardian Ad Litem (attorney appointed to represent the children) will carry out a study. Many judges defer to the recommendations of the evaluators, because unlike the parties or witnesses, they are deemed to be independent witnesses without any personal interest in the outcomes. The custody evaluator will create a report regarding what he or she believes is in the child(ren)'s "best interest".

What is in the best interest of the child is determined by looking at 13 factors specified in the Minnesota statutes.

What is the "Child's Best Interest" test?

The Child's Best interest test is a balancing test between thirteen factors, which have been codified in Minnesota Statute Minn. Stat.518.17.

518.17 Custody and support of children on judgment.

Subdivision 1. The best interests of the child. (a) "The best interests of the child" means all relevant factors to be considered and evaluated by the court, including:

• the wishes of the child's parent or parents as to custody
• the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference
• the child's primary caretaker
• the intimacy of the relationship between each parent and the child
• the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests
• the child's adjustment to home, school, and community
• the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
• the permanence, as a family unit, of the existing or proposed custodial home
• the mental and physical health of all individuals involved; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child
• the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any
• the child's cultural background
• the effect on the child of the actions of an abuser, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent
• except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child. The court may not use one factor to the exclusion of all others. The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.

How is visitation determined?

Both parents can plan visitation, but if communication breaks down, a parenting plan will be made a part of the divorce decree and both parents are required to comply with the parenting plan.

What is the difference between legal and physical custody?

Legal Custody. "The right to determine the child's upbringing, including education, health care, and religious training." When joint legal custody is determined to be in the best interest of the child it means that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, such as education, health care, and religious training. In Minnesota there is a very strong presumption that the parties should share these responsibilities.

Physical Custody. "The routine daily care and control and the residence of the child." The child's primary physical residence and (most likely) school will be with the parent awarded physical custody. In Minnesota, based upon psychological studies, there is a presumption in the law favoring sole physical custody to one parent or the other.

Will child support be mandatory? If so, how is it determined?

In Minnesota, we believe that a child has the right to benefit from the income of both parents. Therefore, the calculation of child support hinges on a shared income model that considers the gross income of both parents. This is a radical departure from Minnesota law prior to 2007, which only used the non-custodial parent's income to calculate support. The current law uses both parents joint income and builds medical insurance reimbursement and child care expenses into the calculation. Of course there are exceptions to every rule, but to calculate a rough child support obligation estimate, see the Minnesota Child Support Calculator online.

My ex-spouse is delinquent in child support payments. How does the court enforce the order?

These are common tools used to enforce support orders:

• withholding income from the obligor's paycheck
• intercepting federal and state income and property tax refunds and lottery winnings
• reporting unpaid child support to credit bureaus
• requiring employers to report new hires to a state office to match with child support obligations
• suspending driver's and occupational licenses
• denying passports
• obtaining contempt of court orders

Can I modify the child support or custody order?

Modification of child support. In the past, all child support modifications required a substantial change in circumstances, such as a new job or loss of a job. Under the new Minnesota child support guidelines, the new law itself can be the substantial change in circumstances if calculating the obligation based on both parents gross income versus the old standard results in a 20% or $75/month change. The old standard based the calculation on the non-custodial parent's net monthly income alone. If your support order was calculated before 2007, you may be entitled to a modification under the new law.

Do I have to report child support payments as taxable income on my federal income tax?

No, child support payments are not income to the custodial parent and are not deductible for the non-custodial parent.

Goldstein Law Office, P.A. is licensed to practice family law in the State of Minnesota: Hennepin County, Ramsey County, Dakota County, Anoka County, Carver County, Scott County, Washington County, Sherburne County, McLeod County and Wright County, Minneapolis, St. Paul, Minnetonka, Plymouth, Wayzata, Maple Grove, Hopkins, St. Louis Park, and surrounding Twin Cities suburbs.

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Golden Valley, Minnesota 55426
Tel: 763.450.1500 • Fax: 763.450.1515
E-mail: charles@fmlylaw.com

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