CUSTODY IN A MINNESOTA DIVORCE OR PATERNITY
In a divorce with minor children, the parties have to come to an agreement concerning the legal and physical custody of the children or the Court will ultimately make the determination. Legal custody is the right to share in the important decisions of the children's lives. It is presumed to be joint unless a strong case is made against it. The person with physical custody usually decides where the children live, go to church and go to school. There is no presumption for joint physical custody although the parties can agree to share joint physical custody. In addition, the court can grant joint physical custody where the facts justify it even over one party's objection. The effects of agreeing to joint physical custody are significant and, therefore, this issue should be discussed with counsel before making such a decision.
If custody is contested, it is the most difficult issue in any divorce. Ideally the parties would be able to set aside their differences in the best interests of the children. However, if the parties cannot come to an agreement on this issue, the Court will decide after a trial. The Court is required to apply the statutory factors to its analysis and make a final decision. The usual process is for the Court to appoint a custodial evaluator to make a recommendation as to custody and visitation. The fees of the custodial evaluator will usually be equally shared by the parties and the rates commonly are as high as those of legal counsel. Although the custodial evaluator's recommendations are not binding on the Court, the Court typically accepts the recommendations of the evaluator.
Minnesota Statutes grant the biological mother of a child born outside of marriage sole legal and sole physical custody of the child. To obtain custody of a child born outside of marriage, a biological father would have to bring a paternity action and motion to obtain custody and establish a good reason why the child should be taken from the birth parent.