Minnesota Child Custody Agreement

Introduction

Key Things to Know

1. 1

   The joint request is what does the work. Minn. Stat. 518.1705, subd. 3(a) provides that upon the request of both parents a parenting plan must be created in lieu of an order for child custody and parenting time, unless the court makes detailed findings that the proposed plan is not in the best interests of the child. That is a findings requirement rather than a burden of proof, and it attaches to the parenting plan vehicle specifically. Nothing in the statute gives an ordinary stipulated sole or joint custody order the same treatment.

2. 2

   Agreeing lets parents opt out of the custody words. Under Minn. Stat. 518.1705, subd. 2(c), parents voluntarily agreeing to parenting plans may substitute other terms for physical and legal custody. Minn. Stat. 518.003, subd. 3 sets up the same idea by opening its definitions of legal and physical custody with the phrase unless otherwise agreed by the parties. The substitution runs through agreement only, because under subd. 3(b) a court creating a plan on its own motion must not use alternative terminology unless the parties agree to it.

3. 3

   A custody label may still appear in the decree, and it is a shell. Where a plan uses substituted terms, Minn. Stat. 518.1705, subd. 4 requires the judgment and decree to state a sole or joint legal and physical custody designation anyway, then provides that the designation is solely for enforcement of the final judgment and decree where that designation is required for that enforcement, and has no effect under the laws of this state, any other state, or another country. It is kept alive for other statutes and other jurisdictions, not to describe what the parents agreed.

4. 4

   A parenting plan is not required in any Minnesota proceeding, but if you file one it has a floor. Minn. Stat. 518.1705, subd. 2(a) requires a plan to include a schedule of the time each parent spends with the child, a designation of decision-making responsibilities regarding the child, and a method of dispute resolution. Subd. 2(b) allows parents to add other issues and matters they agree to. If no plan is made, subd. 3(e) routes custody and parenting time to the ordinary provisions at Minn. Stat. 518.17 and 518.175.

5. 5

   The best interest review does not switch off because the parents agree. Minn. Stat. 518.1705, subd. 5 provides that parenting plans, whether entered on the court's own motion, following a contested hearing, or reviewed by the court pursuant to a stipulation, must be based on the best interest factors in Minn. Stat. 518.17. Those factors are the twelve listed at subd. 1(a)(1) to (12), introduced by the phrase all relevant factors, including, so the list is a floor rather than a closed set. They are also the yardstick subd. 3(a) uses when a court declines a jointly requested plan.

6. 6

   Two powers exist only inside an agreed plan. Under Minn. Stat. 518.1705, subd. 7, parents may agree in the plan on the legal standard that will govern a later move of the child out of Minnesota. Under subd. 9(b), they may agree that a future motion to change the child's primary residence will be decided under the ordinary best interest standard instead of the standard Minn. Stat. 518.18, paragraph (d), would otherwise apply. Both require either that both parties were represented by counsel when the plan was approved, or a court finding that the parties were fully informed, that the agreement was voluntary, and that they were aware of its implications.

7. 7

   Domestic abuse changes the analysis in several places. Minn. Stat. 518.17, subd. 1(b)(9) directs the court to 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 Minn. Stat. 518B.01, has occurred between the parents, and that presumption overrides the presumption in favor of joint legal custody in the same clause. Domestic abuse is also a mandatory factor at subd. 1(a)(4), subd. 1(a)(11) exempts these cases from the factor about supporting the child's relationship with the other parent, and under Minn. Stat. 518.1705, subd. 6 the court may not require joint legal custody or non-judicial dispute resolution on findings of domestic abuse, child abuse, or willful abandonment. Where there has been abuse or a protective order, this is a situation to raise with a lawyer rather than settle on a form.

Minnesota Requirements for Child Custody Agreement

• Parenting Plan on Joint Request, Minn. Stat. 518.1705, subd. 3(a)

  Upon the request of both parents, a parenting plan must be created in lieu of an order for child custody and parenting time, unless the court makes detailed findings that the proposed plan is not in the best interests of the child. The document should record that both parents are making that request.

• Required Plan Contents, Minn. Stat. 518.1705, subd. 2(a) and 2(b)

  A parenting plan must include a schedule of the time each parent spends with the child, a designation of decision-making responsibilities regarding the child, and a method of dispute resolution. Subd. 2(b) permits the parents to add other issues and matters they agree to.

• Substituted Custody Terms, Minn. Stat. 518.1705, subd. 2(c)

  Parents voluntarily agreeing to a parenting plan may substitute other terms for physical and legal custody. If the plan uses substituted terms, define them, and note that a court creating a plan on its own motion may not use alternative terminology unless the parties agree to it under subd. 3(b).

• Custody Designation for Enforcement, Minn. Stat. 518.1705, subd. 4

  Where a plan uses substituted terms, the judgment and decree must also state a sole or joint legal and physical custody designation. That designation is solely for enforcement of the final judgment and decree where it is required for that enforcement, and has no effect under the laws of this state, any other state, or another country.

• Best Interest Factors, Minn. Stat. 518.17, subd. 1(a)

  Twelve factors, numbered (1) through (12), govern issues of custody and parenting time, introduced by a direction to consider all relevant factors, including those listed. Paragraph (b) of the same subdivision states application rules rather than additional factors, among them that there is no presumption for or against joint physical custody.

• Stipulated Plans Reviewed on the Factors, Minn. Stat. 518.1705, subd. 5

  Parenting plans, whether entered on the court's own motion, following a contested hearing, or reviewed by the court pursuant to a stipulation, must be based on the best interest factors in Minn. Stat. 518.17. Agreeing changes the vehicle and the vocabulary, not the substance of the court's review.

• Domestic Abuse Presumption, Minn. Stat. 518.17, subd. 1(b)(9)

  The court must 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 Minn. Stat. 518B.01, has occurred between the parents, and that presumption overrides the presumption in favor of joint legal custody in the same clause. The same clause provides that disagreement alone over sole or joint custody does not show an inability to cooperate.

• Dispute Resolution Limits, Minn. Stat. 518.1705, subd. 6

  Non-judicial dispute resolution processes may not be required in preparing a plan where a parent is alleged to have committed domestic abuse, and the court may not require a plan providing for joint legal custody or non-judicial dispute resolution on findings of domestic abuse, child abuse, or willful abandonment. Choose the dispute resolution method with these limits in mind.

• Moving the Child Out of State, Minn. Stat. 518.175, subd. 3

  The parent with whom the child resides may not move the child's residence to another state except upon order of the court or with the consent of the other parent who has parenting time under the decree. There is no notice period and no mileage threshold, the burden is on the parent requesting the move unless that parent has been the victim of domestic abuse by the other parent, and the court shall not permit a move made to interfere with decreed parenting time.

• Modifications Confirmed by Order, Minn. Stat. 518.1705, subd. 9(a) and 8(b)

  Parents may agree to modify a plan's schedule or decision-making responsibilities, but to be enforceable, modifications must be confirmed by court order. The one part treated as a private contract is an agreed allocation of the child's expenses under subd. 8(b).