Child Custody & Parenting Time

By law, if the mother and the father of a child were not married at the time of the child's birth, the mother has sole custody of the child until a court issues a custody order. This is true even if the parents have signed a Recognition of Parentage and both names appear on the child's birth certificate. See Minn. Stat. § 257.541.

If parents do not agree on issues of legal or physical custody, the court must make a decision that is in the best interest of the child(ren). MN law lists several factors that the judge must consider when making custody decisions. See Minn. Stat. § 518.17 to read more about the best interest factors.  

Emergency “ex parte” actions involve one party asking the court for a hearing and/or order without first giving notice to the other parties in the case about their request. If you want to ask for an emergency custody order, you have to show that you need the order to prevent “immediate and irreparable injury, loss, or damage.” See Minn. R. Civ. Pro. § 65.01.  

Common examples of emergency situations include, but are not limited to:

• safety concerns for the child(ren);
• the non-custodial parent will not return the child(ren) to the parent who has custody;
• one parent has left the state or country without the other parent’s permission;
• one parent is reasonably afraid the other parent has plans to leave the state or country without the other parent’s permission; or
• one parent needs an immediate order so that the child(ren) can get medical treatment or be enrolled in school.
  

The MN Judicial Branch does not publish forms to ask the court to hear a custody matter on an emergency ex parte basis. You might find sample forms at your local law library, but we strongly encourage you to talk to a lawyer about your situation.

Under MN law, custody can be changed when:

• Both parents agree to the change;
• The parent with custody has let the child become a part of the other parent’s home;
• The child’s current environment is endangering their physical or emotional health or development, and the change is less harmful than the current situation; or
• The primary custodial parent asked to move with the child out of state, the court denied the request, and the parent moved anyway.
• One parent has repeatedly and intentionally denied or interfered with the other parent's court-ordered parenting time. 
  

Keep in mind there may be time limits that impact when you can ask the court to change custody. See Minn. Stat. § 518.18 for more information.

If the other parent has court-ordered parenting time, you must get their permission or a court order allowing you to move with the child(ren). If you ask for a court order, the court must decide if the move would be in the child(ren)’s best interests. The court considers several factors, including the child(ren)’s age and how the move would impact them, the child(ren)’s relationship with both parents, and how the relationship with the other parent could be maintained.

The MN Judicial does not publish forms to ask the court to be allowed to move out of state with the child(ren). You might find sample forms at your local law library, but we strongly encourage you to talk to a lawyer about your situation.

It may be possible for someone other than the biological, adopted, or legal parent to get custody of someone else’s child. This is generally called third party custody. This area of law is complicated and there many other legal options that could allow someone else to care for or make decisions for a child that is not their own. These options include:

• Guardianship
• Adoption
• Involvement in Child in Need of Protection or Services (CHIPS) case
• Delegation of Parental Authority (DOPA)
• Designation of Temporary or Standby Custodian

To learn more about the options listed above, you can review the Legal Steps Manual: Raising Relatives' Children, which explains some possible legal options related to caring for someone else's child. You could also contact the Kinship Support Line (Lutheran Social Service of MN) at (651) 917-4640 (metro), (877) 917-4640 (toll-free), or by emailing warmline@lssmn.org.

You are strongly encouraged to talk to a lawyer if you want to get custody of someone else’s child.

The only way for someone to officially get custody of a child, whether it is temporary or not, is by getting a court order. However, if a parent wants to give another adult temporary authority to provide a home for a child and make decisions about the child's schooling, medical care, etc., the parent may be able to use a non-court form called a Delegation of Parental Authority (DOPA). Use of this form does NOT grant custody of a child under MN law.

You have several options when the other parent isn’t following a court order, including:

 

• Mediation: Many custody and parenting time orders require the parties to try to settle their disagreements outside of court before either of them can file a motion with the court. Mediation is a confidential process that can help you settle your disagreement and may be a faster way to resolve the issue than going to court. Please see the Alternative Dispute Resolution Help Topic for more information about mediation. You may also want to review the Settle Out of Court Help Topic.
• Parenting Time Assistance Motion: This can be used to ask the court to change a parenting time schedule, enforce an existing schedule, or ask for makeup parenting time. You can also ask for changes in how the children are transported and exchanged, for the other party to pay you back for court fees and costs or expenses related to denied parenting time, or to pay to the court a civil penalty of up to $500.
• Change of Custody: If the court finds the other parent has denied or interfered with your court-ordered parenting time, this may be a basis to ask for custody to be changed.  We strongly encourage you to talk to a lawyer about your situation.
• Contempt: “Contempt of Court” is a decision by a judge that someone has disobeyed a court order they knew existed and they did so without a good reason. The purpose of a contempt action is to get someone to follow the court order. NOTE: These forms can be used in any family court case even though the title of the packet includes “Divorce Decree.”

You cannot deny the other parent their court-ordered parenting time with the child(ren) just because they are not paying child support. There are several legal options to enforce a child support order. For more information, please see the Child Support Help Topic.

Under MN law, the child’s preference is one of the factors the court will consider when deciding custody, but it is not the only factor. There is not a specific age listed in the law, so it is up to the judge to decide whether the child(ren) is old enough and mature enough to make a choice. See Minn. Stat. § 518.17 for the full list of factors the judge must consider.

There are different options depending on when you and the other parent reach an agreement about custody and parenting time. Unmarried parents who have signed and filed a Recognition of Parentage (ROP) form with the MN Department of Health and do not already have an existing child case can sign a Joint Petition for Establishing Custody, Parenting Time, and Child Support.

If you have a different situation, you may be able to file a “Stipulation and Order” if both parents agree on how you would like to establish or change custody. The MN Judicial Branch does NOT publish Stipulation forms. You might find sample forms at your local law library or you could talk to a lawyer. You could also contact a Self-Help Center.

Domestic abuse is one of the factors that the court considers when deciding custody. See Minn. Stat § 518.17 for the full list of factors. If the court finds that there was domestic abuse between the parents, the court assumes that joint legal custody or joint physical custody is not in the best interests of the child(ren). If a parent is asking for joint custody, they would have to prove why that is best for the child(ren) despite the domestic abuse. Any current protective order through a civil, criminal, or family court case may impact the parties’ ability to participate in Alternative Dispute Resolution processes.

When one party has concerns about the safety of a child(ren) in the other party’s care, they can ask that the other party’s time with the child(ren) be supervised. The judge can order supervised parenting time if they find that unsupervised parenting time would be dangerous for the child(ren)’s physical or emotional health or development. The supervision may be done by a friend or family member or by a professional supervisor, depending on what the judge orders. There are costs for professionally supervised parenting time at a center, and the court order will decide who should pay these costs. In some situations, the parent who has custody may be ordered to supervise.

Generally, in order to have your child custody issues decided by a judge in MN, the child(ren) must have lived in MN with a parent or a person acting as a parent for at least six (6) consecutive months (180 days) before starting the court process. There are exceptions for emergency situations. MN law says you can file for custody where the child(ren) is a permanent resident, where the child(ren) is found, or where an earlier order for custody has been entered.

If only one parent lives in MN, read the law on interstate custody. You should talk with a lawyer if you are not sure where to file your custody case or change an existing custody order.

When parents dispute custody or parenting time in court, the law requires that the parents attend a parenting education class. Depending on the circumstances, the judge may also order that the children attend a class. For more information, visit the Parent Education Help Topic.

If you were not married to the other parent when the child was born AND both parents have signed a MN Recognition of Parentage (ROP), you can use the forms found in the Request to Establish Custody and Parenting Time packet.

If unmarried parents did not sign a ROP form when a child was born, you can only get a custody order after the court establishes paternity to determine the child's legal father. Visit the Paternity Help Topic for more information. 

It depends in part on what you are filing. It costs money to handle custody disputes in court. There are court filing fees, as well as possible attorney’s fees, costs for mediation or evaluation, etc. Court fees vary by county. If you have a low income, receive public assistance, or otherwise cannot afford the filing fees, you may qualify for a fee waiver. Visit the Fee Waiver Help Topic for more information.