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The court shall not consider conduct of a party that does not affect the party’s relationship with the child.
How Minnesota courts evaluate best interests
The court must make detailed findings on each of the best-interests factors based on the evidence presented and explain how each factor led to its conclusions and to the determination of custody and parenting time, and the court may not use one factor to the exclusion of all others.
Any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs is a factor the court must consider in evaluating the best interests of the child for purposes of determining custody and parenting time.
When a conviction shifts the burden of proof
Notwithstanding any contrary provision in section 518.17 or 518.175, if a person seeking child custody or parenting time has been convicted of a crime described in subdivision 2, the person seeking custody or parenting time has the burden to prove that custody or parenting time by that person is in the best interests of the child if the conviction occurred within the preceding five years, the person is currently incarcerated on probation or under supervised release for the offense, or the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2.
Crimes that trigger this burden-shift:
The crimes listed in Minn. Stat. § 518.179, subd. 2, that trigger the burden-shift for custody and parenting time include murder, manslaughter in the first degree, assault in the first through third degree, kidnapping, depriving another of custodial rights, prostitution offenses involving a minor, criminal sexual conduct in the first through third degree, solicitation of a child, incest, malicious punishment of a child, neglect of a child, terroristic threats, felony harassment, and domestic assault by strangulation; drug offenses are not listed.
If a person seeking custody or parenting time has been convicted of a crime listed in Minn. Stat. § 518.179, subd. 2, the court may not grant custody or parenting time to the person unless it finds that the custody or parenting time is in the best interests of the child, and if the victim of the crime was a family or household member the standard of proof is clear and convincing evidence.
Source: Minn. Stat. § 518.179
What happens when a parent with custody is convicted
If a person who has court-ordered custody of a child or parenting time rights is convicted of a crime listed in Minn. Stat. § 631.52, subd. 2, and if no action is pending regarding custody or parenting time, the sentencing court shall refer the matter to the appropriate family court, which shall grant temporary custody to the noncustodial parent unless another arrangement is in the best interests of the child, or suspend parenting time rights unless parenting time with the convicted person is in the best interests of the child.
The crimes that trigger family court referral under this section:
The crimes listed in Minn. Stat. § 631.52, subd. 2, that trigger automatic family court referral upon conviction include murder, manslaughter in the first degree, assault in the first through third degree, kidnapping, depriving another of custodial rights, prostitution offenses involving a minor, criminal sexual conduct, solicitation of a child, incest, malicious punishment of a child, neglect of a child, terroristic threats, felony harassment or stalking, and domestic assault by strangulation; drug offenses are not listed.
The burden of proof in those proceedings:
In Minn. Stat. § 631.52, subd. 1(a), the defendant has the burden of proving that continued custody or parenting time with the defendant is in the best interests of the child, and if the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2, the standard of proof is clear and convincing evidence.
Parenting time: when courts restrict or deny it
Except as provided in section 631.52, the court may not restrict parenting time unless it finds that parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development, or the parent has chronically and unreasonably failed to comply with court-ordered parenting time.
If the court finds, after a hearing, that parenting time with a parent is likely to endanger the child’s physical, mental, or emotional health or safety or impair the child’s emotional development, the court shall restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant.
In the absence of other evidence, there is a rebuttable presumption that a child must receive a minimum of at least 25 percent of the parenting time with each parent.
Source: Minn. Stat. § 518.175
Substance abuse and temporary parenting time decisions
A court must consider credible allegations of substance abuse as a reasonable basis for a party who has denied parenting time to the other party in expedited temporary relief proceedings.
Source: Minn. Stat. § 518.131
Drug offenses and the custody trigger lists
First-degree controlled substance crime:
A person is guilty of controlled substance crime in the first degree if the person manufactures any amount of methamphetamine.
A person is guilty of controlled substance crime in the first degree if on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of 17 grams or more containing cocaine or methamphetamine.
A person is guilty of controlled substance crime in the first degree if the person unlawfully possesses one or more mixtures of a total weight of 50 grams or more containing cocaine or methamphetamine.
Penalty:
A person convicted of controlled substance crime in the first degree under Minn. Stat. § 152.021, subdivisions 1 to 2a, may be sentenced to imprisonment for not more than 30 years or to payment of a fine of not more than $1,000,000, or both.
Second-degree controlled substance crime with a firearm:
A person is guilty of controlled substance crime in the second degree if on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of three grams or more containing cocaine or methamphetamine and the person or an accomplice possesses on their person or within immediate reach, or uses, a firearm.
Source: Minn. Stat. § 152.021 | Source: Minn. Stat. § 152.022
Questions people ask about criminal history and child custody in Minnesota
Does a felony conviction automatically mean I lose custody in Minnesota?
The court shall not consider conduct of a party that does not affect the party’s relationship with the child.
What crimes shift the burden of proof in a Minnesota custody case?
The crimes listed in Minn. Stat. § 518.179, subd. 2, that trigger the burden-shift for custody and parenting time include murder, manslaughter in the first degree, assault in the first through third degree, kidnapping, depriving another of custodial rights, prostitution offenses involving a minor, criminal sexual conduct in the first through third degree, solicitation of a child, incest, malicious punishment of a child, neglect of a child, terroristic threats, felony harassment, and domestic assault by strangulation; drug offenses are not listed.
What must a parent with a listed conviction prove to keep custody or parenting time?
If a person seeking custody or parenting time has been convicted of a crime listed in Minn. Stat. § 518.179, subd. 2, the court may not grant custody or parenting time to the person unless it finds that the custody or parenting time is in the best interests of the child, and if the victim of the crime was a family or household member the standard of proof is clear and convincing evidence.
Can I lose parenting time without a conviction?
If the court finds, after a hearing, that parenting time with a parent is likely to endanger the child’s physical, mental, or emotional health or safety or impair the child’s emotional development, the court shall restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant.
What is the minimum parenting time I am entitled to in Minnesota?
In the absence of other evidence, there is a rebuttable presumption that a child must receive a minimum of at least 25 percent of the parenting time with each parent.
How do drug charges affect Minnesota custody even when they are not on the trigger list?
Any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs is a factor the court must consider in evaluating the best interests of the child for purposes of determining custody and parenting time.
Can substance abuse allegations affect parenting time right away, before a final order?
A court must consider credible allegations of substance abuse as a reasonable basis for a party who has denied parenting time to the other party in expedited temporary relief proceedings.
What happens to my existing custody order if I am convicted of a listed crime?
If a person who has court-ordered custody of a child or parenting time rights is convicted of a crime listed in Minn. Stat. § 631.52, subd. 2, and if no action is pending regarding custody or parenting time, the sentencing court shall refer the matter to the appropriate family court, which shall grant temporary custody to the noncustodial parent unless another arrangement is in the best interests of the child, or suspend parenting time rights unless parenting time with the convicted person is in the best interests of the child.
Talk with Martine Law about child custody in Minnesota
Acting early gives counsel the time to prepare a full picture of your situation before any hearing. Martine Law handles custody matters across Minnesota.
Call for a confidential consultation, or fill out the contact form on this page with your name, phone number, and a short description of your situation, and we will follow up promptly.
