I practice family law in another jurisdiction ? the good news is that
the various states have all enacted a number of uniform laws that make
the interpretation of these various provisions pretty much the same
from state to state. My state, Michigan, is VERY similar to Minnesota
and the questions that you have raised are well-stated and well within
my expertise. THIS IS NOT LEGAL ADVICE however, as there are nuances
in each of the states, and besides, the Google Terms of Usage do not
permit us to render legal advice. This information that I am giving
you should be used to form a good foundation for further discussions
with legal professionals in your area.
Here we go:
Q1. Your parents share joint legal custody and your father has been
awarded sole physical custody. What are the distinctions?
Legal Custody. "The right to determine the child's upbringing,
including education, health care, and religious training [Minn. Stat.
518.003(3)(a)]." When joint legal custody is determined to be in the
best interest of the child it means that both parents have equal
rights and responsibilities, including the right to participate in
major decisions determining the child's upbringing, such as education,
health care, and religious training. In Minnesota there is a very
strong presumption that the parties should share these
Physical Custody. "The routine daily care and control and the
residence of the child [Minn. Stat. 518.003(3)(c)]." The child's
primary physical residence and (most likely) school will be with the
parent awarded physical custody. In Minnesota, based upon
psychological studies, there is a presumption in the law favoring sole
physical custody to one parent or the other.
The statute (state law) referred to above can be found here:
http://www.fmlylaw.com/citations/MinnStat518003.htm of which the
relevant text is:
Subd. 3. Custody. Unless otherwise agreed by the parties:
(a) "Legal custody" means the right to determine the child's
upbringing, including education, health care, and religious training.
(b) "Joint legal custody" means that both parents have equal rights
and responsibilities, including the right to participate in major
decisions determining the child's upbringing, including education,
health care, and religious training.
(c) "Physical custody and residence" means the routine daily care and
control and the residence of the child.
(d) "Joint physical custody" means that the routine daily care and
control and the residence of the child is structured between the
(e) Wherever used in this chapter, the term "custodial parent" or
"custodian" means the person who has the physical custody of the child
at any particular time.
Q2. Your mother offered to take you to the hospital for a check-up.
Your father objected. Does your father, the parent with physical
custody, have an ability to dictate, unilaterally, such matters?
ANSWER: NO. Notice in the statutory definition of at 3(a) above that
a ?legal custodian? has a right to have a say in ?education, HEALTH
CARE, and religious training.
Q3. What are the boundaries of the various parental rights?
ANSWER: There really aren?t hard and fast rules. You see, divorce and
custody issues are ?equitable matters? not ?legal matters.? (Equity
is: ?justice applied in circumstances covered by law yet influenced by
principles of ethics and fairness. A system of jurisprudence
supplementing and serving to modify the rigor of common law.? see
http://www.answers.com/equity&r=67 . It?s meant to be flexible so that
the judge can ?do the right thing in the best interests of the child.?
Q4. The decree mentions: "The parties agree to play a meaningful role
in the development of the child and maintain continuity of the
relationship between the child
and each parent despite the parent's dissolution to ensure frequent
and continued access of the decision making and care of the child as
well as encourage active parenting by both parties." How would that
ANSWER: Michigan has an identical provision and I?ve always thought
that the only reason the language is incorporated is to tell the
parents to play fair, play nice, and don?t take out their problems on
the kid. Further, it is notice to the parent that the mere fact that
one parent is the ?custodial parent? does NOT give them carte blanche
to dictate parenting time ?because the judge likes me best.?
How does it play in? The parents are expected to do the right thing.
If they aren?t doing the right thing, or (more specifically) if one of
them is treading on the rights of the other to parent the child
(forgive me for referring to you as a ?child? ? you probably know that
you are a ?child? until age 18: http://ros.leg.mn/stats/518D/102.html
) then the court can, and probably will, use that against the
offending parent in any subsequent proceeding for change of custody.
In addition, if the offending parent?s actions result in less
parenting time for the other parent, the court can and will order
make-up parenting time to compensate.
Q5. Okay, now to the crux of it. Under Parenting Time, "The
petitioner shall be and hereby is awarded parenting time with the
minor child as agreed upon by the parties and the minor child, but at
a minimum . . . . ." Okay, now the question here is, "as agreed upon."
How does that work?
ANSWER: Literally, what it says. Even though your father is the
primary physical custodian, he and your mother could agree that you
will be with her 100% of the time ? SO LONG AS THEY AGREE. They could
agree that you would live with them 50/50 ? say 6 months on and 6
months off. Anything, so long as they agree.
BUT, unfortunately, in nasty divorces, the parties can?t agree on what
day of the week it is, and to cover that eventuality the court lays
out what it expects as a minimum. Right! AT A MINIMUM. If your father
did not meet the minimum, your mother could motion the court to bring
your father in for a ?show cause? hearing to ?show cause? why he
shouldn?t be held in contempt of court for disobeying a court order.
Q6. It's not explicitly spelled out, but in the Physical Custody, my
father only has physical custody "subject to Petitioner's right to
parenting time." So, my interpretation is that if it was less than the
four weeks used, he wouldn't have veto power, is that right?
ANSWER: True. BTW, if a judge were to hear a parent say the term
?veto power? it would be a very sad day for that parent. Child custody
is not a war. It is not a contest to control the child. As the boiler
plate language above (in #4) states: this is a two-way street so that
the ?child? benefits from growing up with both of his parents. If a
parent exercises his or her parenting time inappropriately creating a
risk of harm to the child ? then that?s a different matter and the
court will deal with it. BUT, so long as the parent is appropriate the
custodial parent better be able to explain to the court?s satisfaction
why parenting time is being restricted.
Q7. On a practical note, have there been court cases where because
it's over the minimum time specified (remembering that this isn't
scheduled time, it's not like visitation rights), would he be able to
veto any and all visits with my mother? Or would he have to have some
grounds (concerns about school, visiting other side of the family,
ANSWER: The court cases take pains to not set forth strict rules in
this area ? again, it?s an equitable proceeding and the appellate
courts want to give the trial judges maximum latitude. Let?s take an
extreme situation: your mother requests un-scheduled parenting time.
Your father refuses. Your mother files a complaint with the court
about being deprived parenting time (even unscheduled time.) Now, if
father shows up and says ?family reunion? the judge is going to give a
pass. If the father says ?I was going to cook hotdogs? the judge is
not going to be impressed. Again, ask yourself, what?s in your best
Unscheduled Time With Mom ---> Dad?s Family Reunion = You should
get to know your extended family. Makes sense for Dad to insist that
you go to reunion.
Unscheduled Time With Mom ---> Hotdog with Dad = Your mother
deserves, and it is in your best interests, that you have time with
her as your time with her is extremely limited.
Q8. Options for changing it.
ANSWER: Of course, the parties can agree to modify the decree by
Otherwise, the provisions of Minnesota statutes 518.18 apply, which basically says:
1. More than 1 year since entry of prior decree.
2. More than 2 years since a change, unless parties agree.
3. Above limits don?t apply if court finds ?persistent and willful
denial or interference with parenting time, or has reason to believe
child is endangered or otherwise at risk.
4. See other provisions here:
Q9. What is the average time frame/success for a minor being able to
change either the
parenting time or to change sole physical custody.
ANSWER: I wish I could tell you. In discussions with attorneys in
your area, there is no set formula. The court endeavors to have
motions heard as soon as practicable, but the court docket, being a
very dynamic process, is nothing if not elastic. It appears that a
referee hearing and recommendation, or judicial hearing and finding,
should be able to be accomplished within a couple of months ? 3 at the
Q10. Can the minor petition for that?
ANSWER: No, it doesn?t appear that a child can ?appear? or ?petition?
the court in a child custody matter. See, generally
However, may I suggest that you paper the court file with a detailed
letter as to your preferences, and what you would prefer to see the
court do and what problems have been cropping up that your suggested
action would correct. Send a separate letter to the court asking for a
courtesy copy of notices sent out in the matter. Since you are not
entitled to anything directly, ask respectfully and volunteer to pay
any mailing fees (which will be minimal.)
Q11. Can the child have a say?
ANSWER: The court will consider a mature child?s wishes as well as
the reasoning of the child. One Minnesota expert says that the courts
are more willing to listen to an older child approaching age 18 where
that child is likely to "vote with their feet" and effectively
determine their primary custodial parent. Courts are hesitant to
resist the preference of a child who is likely to run away from the
home of the other parent.
Q12: Finally, are there family law practices near the Twin Cities
that offer pro-bono legal advice specifically to the minors in divorce
ANSWER: It is virtually impossible to give a list, on a public forum
such as this, of firms that make available such a scarce resource as
pro bono services. All I can suggest is that you call around and ask
about firms that specialize in Family Law and ask if they have a pro
bono program. If they do, be prepared to document your case
thoroughly in advance before you get an interview.
HOWEVER, I did speak with the Southern Minnesota Regional Legal
Services office in Prior Lake and they will consult with minors (and
others) in Family Law cases. Intake calls to determine qualification,
though, must be sent through the St. Paul office:
SOUTHERN MINNESOTA REGIONAL LEGAL SERVICES
166 East 4th St., Suite 200
St. Paul, MN 55101
(651) 222-4731 (Intake Hotline)
This is pretty cool, since most legal service offices will not become
involved in family law. I would definitely start there.
Also, I would suggest that you look at the law clinics of St. Thomas,
Hamline and UofM law schools and approach them for assistance. There
is nothing as ferocious as a third-year law school student with a real
I hope I have answered each of your questions. If not, don?t hesitate
to hit the CLARIFICATION key and I will get right back to you.
A number of years ago, I was in court in front of a referee arguing
that my client was being disadvantaged because his son wouldn?t agree
to any visiting time with him. It was a nasty divorce and the 15-year
old boy had taken sides with his mother. The court said ?we?re not
going to force a 15-year old to do what he doesn?t want to do.?
Not a very satisfactory answer, certainly. But is was a realistic one.
When you are 16, as you are, your feelings and opinions have to count
for something, even if the statutory law of Minnesota, on it?s face,
doesn?t give you a say. Again, as said above: communicate with the
court in writing, and request an opportunity at any hearing to speak
with the judge or referee. They may require you to talk in open court
? you can request a private meeting, but they may not grant it. Be
prepared to speak your opinions in front of both parents.
The good news is: many of these problems wouldn?t exist if they
didn?t both love you, very much. I have dealt with hundreds of kids
who wish they had your problems.
Minnesota and Divorce
Minnesota and Family Law
Minnesota and ?child custody?
Minnesota Legal Services
American Bar Association