In Minnesota, if you have children and you and the other parent cannot come to an agreement with respect to custody and parenting time, chances are your case will be subject to a custody and parenting time evaluation.
A custody and parenting time evaluation is usually conducted by the county's court services department or by a private evaluator. For example, cases in Hennepin County are usually referred to Hennepin County Family Court Services, where an evaluation is conducted by an employee of that department. In other counties, such as Dakota, Scott, and Carver, evaluations are usually conducted by private individuals who contract with the parties for their services.
The Minnesota child custody and parenting time evaluation process consists of an investigation and the issuance of written recommendations by the evaluator. Generally the process will last anywhere from 3 to 7 months, dependant in large part on where your case is venued and the issues presented in each case. Costs for court appointed evaluations usually range from $1,000.00 to $3,000.00, again dependent upon which county your case is venued as well as the issues presented to the evaluator. Private evaluators, especially in the metro areas of St. Paul and Minneapolis, commonly demand retainers of $5,000.00 or more.
Usually, the evaluator will have at least two office visits with the parties. This first visit gives the evaluator the opportunity to meet the party and to get his or her "side of the story." Depending on the circumstances, the office visit may be with both parties together or each party individually. The evaluator will then conduct a "home visit" with each party. The primary purpose of the home visit is to allow the evaluator to see the children with their parents in a "home" setting.
The parties will also be able to submit to the evaluator a list of collateral contacts. These "contacts" are individuals the party wishes the evaluator to speak with for information relevant to the evaluation. These "contacts" can be character references or individuals who have been "witness" to an event or events that are important for the evaluator.
In some cases, both parties will undergo a psychological evaluation, which normally includes the Minnesota Multiphasic Personality Inventory 2 (MMPI - 2). This test has been consistently ranked as one of top psychological tools of all psychological instruments in use by American psychologists. While the test is not perfect, it is widely accepted by judges as a dependable source of information about the parties in custody cases.
The evaluator will be recommending a particular custody designation and parenting time schedule that is, in their opinion, in the "best interests" of the children. This "best interest standard" as it is known is defined by statute as is set forth in detail below:
MINNESOTA CUSTODY AND SUPPORT OF CHILDREN ON JUDGMENT ( Minnesota Statute 518.17)
Subdivision 1. The best interests of the child. (a) "The best interests of the child" means all relevant factors to be considered and evaluated by the court including:
(1) the wishes of the child's parent or parents as to custody;
(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
(3) the child's primary caretaker;
(4) the intimacy of the relationship between each parent and the child;
(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
(6) the child's adjustment to home, school, and community;
(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(8) the permanence, as a family unit, of the existing or proposed custodial home;
(9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;
(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
(11) the child's cultural background;
(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
(13) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
The court may not use one factor to the exclusion of all others. The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.
(b) The court shall not consider conduct of a proposed custodian that does not affect the custodian's relationship to the child.
Subd. 1a. Evidence of false allegations of child abuse. The court shall consider evidence of a violation of section 609.507 in determining the best interests of the child.
Subd. 2. Factors when joint custody is sought. In addition to the factors listed in
subdivision 1, where either joint legal or joint physical custody is contemplated or sought, the
court shall consider the following relevant factors:
(a) the ability of parents to cooperate in the rearing of their children;
(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;
(c) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and
(d) whether domestic abuse, as defined in section 518B.01, has occurred between the parents.
The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal or 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.
If the court awards joint legal or physical custody over the objection of a party, the court shall make detailed findings on each of the factors in this subdivision and explain how the factors led to its determination that joint custody would be in the best interests of the child.
Subd. 3. Custody order. (a) Upon adjudging the nullity of a marriage, or in a dissolution or separation proceeding, or in a child custody proceeding, the court shall make such further order as it deems just and proper concerning:
(1) the legal custody of the minor children of the parties which shall be sole or joint;
(2) their physical custody and residence; and
(3) their support. In determining custody, the court shall consider the best interests of each child and shall not prefer one parent over the other solely on the basis of the sex of the parent.
(b) The court shall grant the following rights to each of the parties, unless specific findings are made under section 518.68, subdivision 1. Each party has the right of access to, and to receive copies of, school, medical, dental, religious training, and other important records and information about the minor children. Each party has the right of access to information regarding health or dental insurance available to the minor children. Each party shall keep the other party informed as to the name and address of the school of attendance of the minor children. Each party has the right to be informed by school officials about the children's welfare, educational progress and status, and to attend school and parent-teacher conferences. The school is not required to hold a separate conference for each party. In case of an accident or serious illness of a minor child, each party shall notify the other party of the accident or illness, and the name of the health care provider and the place of treatment. Each party has the right to reasonable access and telephone contact with the minor children. The court may waive any of the rights under this section if it finds it is necessary to protect the welfare of a party or child.
Subd. 4.[Repealed, 1986 c 406 s 9]
Subd. 5.[Repealed, 1986 c 406 s 9]
Subd. 6. Departure from guidelines based on joint custody. An award of joint legal custody is not a reason for departure from the guidelines in section 518A.35.
History: (8596) RL s 3585; 1969 c 1030 s 1; 1971 c 173 s 1; 1974 c 107 s 14; 1974 c 330 s
2; 1978 c 772 s 39; 1979 c 259 s 17; 1981 c 349 s 5; 1983 c 308 s 15; 1984 c 547 s 16; 1984 c
655 art 1 s 73; 1986 c 406 s 1,2; 1986 c 444; 1987 c 106 s 1; 1988 c 662 s 1; 1988 c 668 s 12;
1989 c 248 s 2,3; 1990 c 574 s 13,14; 1991 c 271 s 4; 1992 c 557 s 8; 1993 c 322 s 7; 1994 c 630
art 12 s 4; 1997 c 203 art 9 s 16; 2005 c 164 s 29; 1Sp2005 c 7 s 28
At the end of the evaluator's investigation, a report along with recommendations will be issued. The report will comment on each of the statutory factors set forth above and will end with recommendations with respect to custody and parenting time. Given the particulars of the case, additional recommendations may be included, such as a recommendation for a party to attend anger management or undergo a chemical dependency assessment.
This report is submitted to each party's attorney and to the court. The report is not an "order" and has no legal or binding effect. At this point, the parties will review the report with their attorneys and decide what course of action is necessary or desired - settlement or trial.
In some cases the parties decide to settle the child custody and parenting time issues by adopting the recommendations as set forth in the report. Those recommendations are then transferred to an Order, which is signed by the parties and the attorneys and submitted to the Court for entry. The custody and parenting time portion is then concluded and trial has been avoided.
In other cases, a party will decide to challenge the contents of the report and take the issue to trial. You and your attorney should review the report together to determine the best course of action in your own particular case.
Contact Minnesota divorce lawyer Christopher M. Banas at 651-492-1069 with any questions about Minnesota child custody, Minnesota parenting time, or any other family law related matter in the St. Paul and Minneapolis areas.