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In evaluating the best interests of the child for purposes of determining custody and parenting time, the court must consider and evaluate all relevant factors, including any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs.
The court shall not consider conduct of a party that does not affect the party’s relationship with the child.
How domestic abuse affects custody decisions
Whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship, and the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs, is a factor the court must consider in evaluating the best interests of the child.
The court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.
The court shall consider evidence of a violation of section 609.507 in determining the best interests of the child.
When a parent has a prior criminal conviction
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: (1) the conviction occurred within the preceding five years; (2) the person is currently incarcerated, on probation, or under supervised release for the offense; or (3) the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2.
If this section applies, 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.
If the victim of the crime was a family or household member, the standard of proof is clear and convincing evidence.
A guardian ad litem must be appointed in any case where section 518.179 applies.
Covered offenses:
Section 518.179 applies to convictions including assault in the first, second, or third degree; domestic assault by strangulation; criminal sexual conduct in the first or second degree; malicious punishment of a child; neglect of a child; felony harassment; and similar crimes under the laws of the United States or any other state.
Source: Minn. Stat. § 518.179
When a parent with custody rights is convicted after an order is in place
If a person who has court-ordered custody or parenting time rights is convicted of a crime listed in Minn. Stat. § 631.52, subd. 2, and no action is pending regarding custody or parenting time, the sentencing court shall refer the matter to the appropriate family court.
Upon referral under Minn. Stat. § 631.52, the family court shall grant temporary custody to the noncustodial parent unless it finds that another custody arrangement is in the best interests of the child, or suspend parenting time rights unless it finds that parenting time with the convicted person is in the best interests of the child.
Under Minn. Stat. § 631.52, 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 was a family or household member as defined in section 518B.01, subdivision 2, the standard of proof is clear and convincing evidence.
Temporary orders during the divorce
In a temporary-order proceeding under Minn. Stat. § 518.131, the court must consider credible allegations of domestic abuse, substance abuse, maltreatment findings, or neglect as a reasonable basis for a party who has denied parenting time to the other party.
Source: Minn. Stat. § 518.131
Orders for protection and custody
Upon notice and hearing in an order-for-protection action, the court may award temporary custody or establish temporary parenting time, and if the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted parenting time, the court shall condition or restrict parenting time as to time, place, duration, or supervision, or deny parenting time entirely, as needed to guard the safety of the victim and the children.
An order for protection shall prohibit the abusing party from possessing firearms for the length the order is in effect if the order restrains the abusing party from harassing, stalking, or threatening the petitioner and includes a finding that the abusing party represents a credible threat to the physical safety of the petitioner or prohibits the abusing party from using, attempting to use, or threatening to use physical force against the petitioner.
Source: Minn. Stat. § 518B.01
Custody when parents were never married
In a custody or parenting time proceeding involving unmarried parents, the court shall consider section 518.175 and evaluate all relevant factors in section 518.17, subdivision 1, to determine the best interests of the child, and the fact that the parents are not or were never married to each other shall not be determinative of the custody and parenting time of the child.
Source: Minn. Stat. § 257.025
Required notice in every custody order
Every court order under chapter 518 that provides for custody or parenting time must contain a notice that a person may be charged with a felony who conceals a minor child or takes, obtains, retains, or fails to return a minor child from or to the child’s parent, according to Minn. Stat. § 609.26.
Questions people ask about Minnesota divorce and child custody
What standard does a Minnesota court use to decide custody?
In evaluating the best interests of the child for purposes of determining custody and parenting time, the court must consider and evaluate all relevant factors, including any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs.
Does domestic abuse affect who gets custody?
Yes. The court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.
Can a parent with a felony conviction get custody in Minnesota?
It depends. 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: (1) the conviction occurred within the preceding five years; (2) the person is currently incarcerated, on probation, or under supervised release for the offense; or (3) the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2. If this section applies, 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.
What is the burden of proof when a parent seeks custody after a conviction involving a family member?
If the victim of the crime was a family or household member, the standard of proof is clear and convincing evidence.
What happens to an existing custody order when a parent is convicted?
If a person who has court-ordered custody or parenting time rights is convicted of a crime listed in Minn. Stat. § 631.52, subd. 2, and no action is pending regarding custody or parenting time, the sentencing court shall refer the matter to the appropriate family court. Upon referral under Minn. Stat. § 631.52, the family court shall grant temporary custody to the noncustodial parent unless it finds that another custody arrangement is in the best interests of the child, or suspend parenting time rights unless it finds that parenting time with the convicted person is in the best interests of the child.
Can unmarried parents use the same custody process as divorcing parents?
Yes. In a custody or parenting time proceeding involving unmarried parents, the court shall consider section 518.175 and evaluate all relevant factors in section 518.17, subdivision 1, to determine the best interests of the child, and the fact that the parents are not or were never married to each other shall not be determinative of the custody and parenting time of the child.
Does an order for protection affect custody during a divorce?
Yes. Upon notice and hearing in an order-for-protection action, the court may award temporary custody or establish temporary parenting time, and if the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted parenting time, the court shall condition or restrict parenting time as to time, place, duration, or supervision, or deny parenting time entirely, as needed to guard the safety of the victim and the children.
What notice must a custody order include?
Every court order under chapter 518 that provides for custody or parenting time must contain a notice that a person may be charged with a felony who conceals a minor child or takes, obtains, retains, or fails to return a minor child from or to the child’s parent, according to Minn. Stat. § 609.26.
Talk with Martine Law about child custody in Minnesota
Custody decisions have long-term consequences for your family, and acting early can protect your position. Martine Law handles custody and divorce cases 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.
