Minnesota's Child Custody Process: Going to Court

The goal of the custody process is always to meet the child's needs.

If you come to an agreement with the other parent at any point, you can settle your case by writing a parenting plan together and having a judge sign to make it a court order. Otherwise, your child custody case will ultimately go to trial.

If you can't afford a lawyer, consider seeking a free or low-cost legal consultation to cover your bases.

Each person's situation is unique, so the following steps may vary. Your court can provide information specific to your case.

Stage 1: Preparing for your case

Making sure you're eligible

You are eligible to file for custody in Minnesota if your child has lived in Minnesota for at least six months or if a custody order was previously entered in Minnesota. Interstate custody law applies when one parent lives outside Minnesota.

Your situation determines the type of case you pursue.

Are you married to the other parent?

• Married parents establish custody, parenting time and child support as part of their divorce or legal separation.
• Unmarried parents open a case about custody, parenting time and child support.

Does the law recognize you as a parent?

• If yes, proceed normally.
• If no, you may file simultaneously for legal parenthood, custody, parenting time and child support.

The following information is for parents. When at least one parent is caring for the child, it's rare for someone other than a parent, like a grandparent or legal guardian, to get custody.

If you or your child is unsafe: Protective order

In cases of harassment or abuse, a protective order can keep the other parent out of your home and deny them parenting time. These orders are known by acronyms like DAB, OFP, DANCO and HRO. You can file for a protective order at any time — the sooner the better.

If you prove that you or your child is in immediate physical danger, the court can issue an ex parte restraining order. This is a temporary order that the judge issues swiftly without calling the other parent to court. To obtain a longer-term restraining order, the other parent will need to be called to court.

If at all possible, an abused parent should have a lawyer with relevant experience. A lawyer can tell you your options, plan a legal strategy and help you tell your story in court.

Stage 2: Opening a case

First try to agree on as many issues as possible. Then file for divorce or custody.

It costs a few hundred dollars. If you cannot afford this, you may apply for a fee waiver. Be aware that this is not the full cost of the process. Fees are charged for other steps, too, like the parenting class.

If you and the other parent agree on how to care for your child, you can file a joint petition. If each of you has a lawyer, you may avoid a court hearing.

If you do not agree, the case is contested. One parent — the petitioner — files a petition with the court. They must ensure that the other parent — the respondent — is served with this petition.

Stage 3: Addressing early issues

Initial case management conference (scheduling hearing)

After you file, both parents attend a scheduling hearing to meet the judge. Most Minnesota counties call this an initial case management conference (ICMC).

The ICMC takes place as early as possible — within a few weeks of filing — to identify any problems that need to be rapidly addressed. The judge explains the importance of reaching agreement and likely orders you to try an alternative dispute resolution method (e.g., mediation).

The ICMC may be no more than a few minutes. If you have a lawyer, the lawyer attends and may speak for you.

Before the meeting, you submit your county's ICMC Data Sheet (the ICMC Data Sheet from Hennepin County, for example), which asks for your child's name and age, your assets and debts, and whether you have agreed how to parent.

Alternative dispute resolution (ADR)

If you haven't reached agreement with the other parent, Minnesota courts require you to try an alternative dispute resolution method — though not if your case involves domestic abuse. Most custody cases in Minnesota are settled through ADR and do not go to trial.

If you file a motion to introduce a new issue in your case, ADR may be required again. You or your lawyer must file a Certificate of Settlement Efforts to declare either that you already tried ADR for this specific issue or that you invited the other parent to discuss settling.

If you need a short-term arrangement: Temporary order

At the ICMC, the judge may schedule a hearing to issue a temporary order for custody, parenting time or child support.

A parent can also request a temporary order at any time by submitting a motion with written evidence (i.e., an affidavit). However, if you agree to participate in the ADR process known as early neutral evaluation, you must complete that process before requesting a temporary order.

A temporary order can provide stability for the child until the case ends. Furthermore, it sometimes steers parents away from a trial, as it may suggest to them how the judge is likely to rule.

The court probably won't apply the label of sole or joint physical custody at this stage as that is determined in the final order.

Legally, the temporary order is not supposed to directly influence the final order, but it does affect the child's living situation, which in turn can affect the judge's final decision.

If your child has suffered abuse or neglect: Guardian ad litem

If a protective order may be appropriate and if you don't have one yet, the judge may discuss that at the ICMC.

Separately, the court can appoint a guardian ad litem to represent the child's best interests.

A guardian ad litem (GAL) in Minnesota must:

• Observe the child at home and interview the family members
• Advocate for the child's best interests in proceedings
• Present recommendations to the court
• Keep the information private except when it is needed in court

You can request a GAL for your child, but the judge has final say.

Parenting class

In Minnesota, all parents in contested custody cases (except when there is domestic abuse) are required to take a minimum eight-hour parent education class. Be aware that some online courses are fewer than eight hours, so the judge may not accept them.

Consult your county's specific requirements, which may include a separate class for your child to help them deal with the family changes. You do not have to take the class with the other parent.

If the judge wants status updates: Review hearings

The judge may ask your lawyer (or you, if you're representing yourself) for status updates. They may also schedule review hearings, where both sides give updates in court.

Stage 4: Nearing trial

Discovery

Discovery means gathering information, either directly from the other parent or through your lawyers. It can begin at any time, but it heats up when trial approaches.

Discovery can be done informally or with formal written requests. For example, in formal requests, you might ask for:

• The other parent's financial records
• Written statements from their witnesses (i.e., affidavits)
• Spoken interviews on the record with those witnesses (i.e., depositions)

A formal discovery process does not signal that you are inevitably headed to trial. Your lawyer may gather information with the hope of reaching agreement and settling.

The other parent may also request information from you, and it's wise for you to provide it to avoid drawing out the process. Your lawyer should recognize which information requests are legally permissible.

You may have to file a motion to ask the judge to allow your evidence in court.

Custody evaluation

The judge usually orders a full custody evaluation. Evaluations are especially common in Hennepin County.

The evaluation takes several months and commonly costs between $5,000 and $15,000. Parents split the cost. The judge considers each parent's ability to pay. You may be able to choose the evaluator together.

During the evaluation, you have mediation sessions so each parent can tell their own history of being a parent. The evaluator also interviews your child — at home, as well as at another location like school — and about a dozen other people in their life, such as family members and teachers.

The judge can use information from the evaluation to make their decisions. Because the evaluators are typically experienced in counseling or social work, judges take their recommendations seriously.

If you believe you're headed for a custody evaluation, you may ask the judge to order it early in your case. Completing it early may prompt you to settle and thus shorten your legal process. Most parents, though, first try to settle through ADR.

Pretrial hearings and conferences

You attend a pretrial hearing with the other parent, your lawyers and the judge. Sometimes this is called a prehearing conference. Either way, it ensures that both parents are ready for trial.

Several things can happen at a pretrial hearing. The custody evaluator may discuss the results of your evaluation. If you haven't completed required ADR, the judge requires you to do so before trial. If you have tried ADR and the judge believes there's still a chance you could settle, they either help you at the hearing or order a moderated settlement conference (MSC).

The MSC is common in the Minneapolis area. It's held at the courthouse, and the judge may attend, but a neutral guides the discussion. Each parent is expected to pay one-half of the hourly rate they pay their own lawyer. If they don't have a lawyer, an income-based fee scale applies.

The pretrial hearing (or the MSC) is usually the last step before going to trial. The judge uses it to schedule a trial date. You are still allowed to settle at any point before trial. But realistically, once the judge sets a date, most people do continue to trial.

Stage 5: Going to trial

At trial, the judge reviews your proposed parenting plans and parenting time schedules, listens to witness testimony and weighs evidence before making a decision. They issue a court order to finalize their decision.

Especially if your argument concerns a prior order or certain other issues specified by law, the judge may refer to your trial as an evidentiary hearing. This type of hearing is substantially the same as a trial because the judge uses it to decide the main issue. Then, if any issues remain, the judge calls an additional hearing that is technically the trial.

If the child is old enough: Child interview

If the judge believes the child is mature enough to express ideas, the judge may interview them. Most judges avoid this as they recognize it is stressful for the child.

If the judge does an interview, they don't ask directly about the child's custody preferences; instead, they seek illuminating details, like how the child feels in each parent's home.

The child interview, though part of the trial, occurs in the judge's private chambers. The parents' lawyers may be present, but typically the judge does not invite the parents.

After you receive a custody order

After the judge issues the court order, you and the other parent must implement the custody arrangement as ordered. You could still attend other hearings in the future.

Compliance hearings

At any time, if one parent isn't following the court order, the other may file a motion for the court to address it.

A Minnesota court may treat this hearing differently if you request it within six months after receiving your court order. There may be a special form for the six-month compliance hearing; a copy of this form may be included in your court order. Either parent can use it.

If the court finds that one parent intentionally interfered with the other's time, the court will order compensatory time. If the problem continues, the court will fine the interfering parent up to $500.

Modifying a custody order

After a custody order takes effect, you can request a change as long as it serves the child's best interests.

The timeline for requesting a change depends on whether the other parent agrees to it.

If you and the other parent reach a new agreement on your own, you may complete a stipulation and order at any time and file it with the court. The court may accept or reject it, usually without a hearing.

If you and the other parent disagree, generally you must wait until one year has passed from the original order. (But you don't need to wait if the other parent is interfering with your parenting time or if the child is in danger.)

The court may call a motion hearing to decide the issue. It is unlikely to require an evidentiary hearing, i.e., a trial, where you need to make a formal presentation.

Throughout the custody process

During the custody process, you may need to create a parenting time schedule, write a parenting plan, keep a log of interactions with the other parent, and more.

The Custody X Change online app enables you to do all of this in one place.

With parenting time calendars, a parenting plan template, a digital journal and other tools, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Throughout your case, take advantage of our technology to stay on top of all the moving parts.