How do I get Custody of my children in Minnesota?

In all situations, parents can agree to custody and parenting time. If parents can’t agree, the Court must decide custody and parenting time based on “the best interests of the child.”

For background information and to learn the basics, check out the Minnesota Child Custody page.

General Minnesota Custody Rules

In all of the situations below, if parents can’t agree, the judge must rule based on the child’s best interests. The twelve best interest factors can be found under Minnesota Statutes §518.17.
After reviewing the statute, you’ll also need to review previous court cases in Minnesota to know what the courts look at for each factor and how Judges tend to evaluate particular circumstances.
If you don’t have a lawyer, you can visit your local law library to review cases to see how the court has ruled regarding these 12 factors.

Common Minnesota Custody Situations

Here are three common situations that arise:

Situation 1: A married couple is getting divorced and they have minor children together.

In this scenario, custody and parenting time is laid out in the divorce decree. As stated above, this can be agreed by the parties. Otherwise, it is ordered by a judge if the parties can’t agree.

Situation 2: An unmarried couple has a minor child and the child has no established legal father.

In this situation, the father must start a paternity proceeding to:

- Establish that he is the legal father and
- To establish his custody rights.

The father can do this all in one court proceeding. Once again, the parties may come to an agreement, otherwise the judge must consult “the best interests of the child” to make a custody and parenting time decision.

Situation 3: An unmarried couple has a minor child. The child has an established legal father, but the father has no custody rights.

This is the case when an unmarried father has a child and has already signed a Recognition of Parentage (ROP) or has been established as the legal father through genetic testing.

A signed Recognition of Parentage or genetic testing will establish him as the legal father, but neither will give him any custody or parenting time rights.

This third situation commonly arises in two types of cases:

In the first case, a dispute arises when the unmarried couple is now split up and the mother, who has all custody rights under Minnesota law, is denying or otherwise restricting access to the legal father.

In the second case, the mother receives public benefits on behalf of the child. The County she receives benefits through inserts itself into a Court proceeding to establish a legal father.

The County does this so they can start the father’s child support obligation. The County then receives reimbursement for the public benefits paid to the mother from the father. However, the County has no role to establish custody and parenting time rights for the father. The County’s only obligation is to establish paternity so the father may be pursued for child support.

In either of these two cases, the father must establish his custody rights in a Court proceeding. This custody proceeding can also influence the father’s future child support obligation. If parents can’t agree, the Court again will look to “the best interests of the child” to make the final decision.

Some Final Things to Remember

Custody outcomes vary case by case.

Family court Judges have a lot of discretion in these cases.

Parents need to argue to “the best interests of the child” (the 12 factors discussed previously).

Parents need to provide many facts to support their side.

Custody may be awarded based on an agreement of the parties or, if the parties can’t agree, custody will be decided by a Judge.

For other divorce or family law questions, please consult the list to the left or the FAQ page. If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.