TWO TYPES OF CUSTODY

As you may know, there are two types of custody: Legal and Physical.

Legal custody refers to the right of the parents to participate in important decisions in the lives of their child(ren). This specifically includes decisions related to schooling, medical care, religion, extra-curricular activities and other important events. There is a very strong presumption under Minnesota law that these responsibilities should be shared by the parties. The only time that legal custody is not shared is when the parties demonstrate a complete inability to communicate or where there has been domestic abuse.

Physical custody is what most people think of when they hear the term custody. It refers to the primary physical residence where the child will live. There is a presumption under Minnesota law favoring sole physical custody to one parent or the other. This presumption is based upon psychological studies that have indicated that children respond better when their physical environment is consistent.

STANDARD FOR GAINING CUSTODY

When custody is being determined for the first time, the Court must determine what is in the child(ren)’s best interests.  To determine what is in the child(ren)’s best interest, the court weights thirteen factors that are set out in Minnesota Statutes (See attachment to this letter). As you may note, the factor’s are less than clear. As a result, the way you present your case to the custody evaluator is important.

Once custody has been determined and a change of custody is requested, the burden on the party seeking to change custody is much higher. The Court must find that there has been endangerment OR that the child has been integrated into the household of the non-custodial parent by agreement of the parties AND that the benefit of the change outweighs the difficulties created by the change.

WORKING WITH CUSTODY EVALUATORS

In most cases, a custody study will be carried out by county workers or an independent Guardian Ad Litem. The custody evaluator will create a report regarding what he/she believes is in the child(ren)’s best interests. “Best interests” of the child are magic words in custody proceedings since that is the standard that is used to make custody decisions. What is in the best interests of the child is determined by looking at thirteen factor specified by Minnesota Statutes. You will find those factors and the statute a the end of this article.

The custody evaluator often has broad power to require psychological testing, chemical dependency evaluations and urinalysis tests. How you interact with the custody evaluator may be a critical element of your custody case.

• Custody evaluators will oftentimes make you believe that they agree with your side of the case. This is done so that you drop your guard. Never assume that the evaluator’s report will favor your position.
• Custody evaluators are also people. That means they react to personalities. You are best able to present your case to an evaluator if you appear open and honest.
• Do not argue with the evaluator. Make eye contact and listen when they speak. This establishes a connection. It may help to nod your head as they speak even if you disagree with what they are saying. When you disagree, tell them “I see your point, but...” or agree first “I agree, but would you consider this to be important....”
• The custody evaluator does not care about good guys and bad guys. The evaluator cares about what is in the “best interests of the child(ren).”  To relate your case to the evaluator, you must speak his/her language. Your statements must relate in some way to what is best for the child not the parent.  For example, the statement, “my husband drinks too much”, is incomplete.  It does not relate how the drinking affects the child(ren).  Always relate how the conduct affects the child(ren).  A better statement would be:

  “My husband drinks too much. Because of that, he is rarely home and when he is, he is:.... abusive....spends little quality time with the children....is unable to help the kids with their homework....”

• Provide the evaluator with the documents supporting your statements.
• Provide the evaluator with the names of collateral contacts, people who are aware of your strong points as a parent and the other party’s weak points.  (It is usually better not to include relatives as part of your contacts since they may have a bias).
• ALWAYS ASSUME when you go to court or visit a custody evaluator that you may be ordered to provide a urine sample for testing to determine if you have used drugs or alcohol.

CUSTODY STUDY ELEMENTS

Although each custody evaluator may have a slightly different approach to performing custody evaluations there are some things you should expect :

1. Initial Interview with Evaluator. At the initial interview, the evaluator will discuss at length the past history of care with the child. The evaluator will attempt to determine who was the primary caretaker.
   BE PREPARED! At the initial interview arrive prepared with a chronology of events clearly set out.
2. Home Visits. The evaluator will make at least one home visit to watch you interact with your child(ren). The evaluator is watching to see:
   • Whether you actively play with and interact with your child;
   • Whether you set appropriate boundaries for the child and whether the child obeys those boundaries;
   • Discipline used;
   • Child’s reaction to the parent;
   • Condition of the home environment.
3. Collateral Contacts. The evaluator will ask for a list of persons that you think the evaluator should contact. Family members are usually not good contact since they may be biased in your favor. Where possible use independent contacts such as counselors, daycare providers, and school teachers.
4. Alcohol Assessments. Where there are allegations of alcohol or drug abuse, the evaluator may refer you to a counselor for a chemical dependency evaluation. It is important that you cooperate in that process.
5. Psychological Evaluations. Where there are allegations of emotional or anger problems, the evaluator may refer you to a counselor or psychologist for a psychological evaluation. It is important that you cooperate in that process. Make sure that you communicate with the evaluator or counselor regarding any and all appointments. Budget enough time to complete and testing that is required. A failure to cooperate will appear in the evaluation.

WHAT YOU SHOULD TRY TO DEMONSTRATE

Remember, there are six magic words in custody evaluations.- “Best Interests of the Minor Child”. Custody evaluators listen for issues that relate to that phrase. You should relate how each of your proposals is beneficial to your child(ren). Wherever possible use phrases that mean “best interest of the minor child” without using those exact words. Using the exact words sounds too legalistic and prepared. Your statements should sound more natural.

There are certain things that evaluators look for in their custody evaluation. You should discuss these issues with the evaluator truthfully since the evaluator will, to a degree, assess your credibility. The issues you should be prepared to raise are the following: 

1. Primary Caretaker. Where has the child lived since birth? What was the extent of contact each parent had at each phase of the child’s life? What responsibilities did each parent have?

   The best way to support the contention that you provided care for the minor child is through independent documentation. The other parent will no doubt contradict your assertions that you provided much of the care. Independent documentation may include:

   • Daycare or school records demonstrating drop off and pick ups or attendance at parent-teacher conferences. Even if you do not have documents demonstrating attendance at school functions at least verify the dates of the conferences and familiarize yourself with the daycare provider’s or teacher’s names. The more information you are able to provide in that regard the more credible you will appear as an active parent.
   • Medical records may document which parent brought the child in for a medical or dental appointment. If you can acquire these records prior to meeting with the evaluator, do so.
   • Homework assignments or report cards may require a parental signature before they are submitted at school. That signature may provide independent verification that the parent reviewed or was actively involved in the child’s schooling. Wherever possible acquire and retain these documents. Provide them to the custody evaluator to support your claims that you were actively involved in the child(ren)’s schooling.
   • Be able to relate who the child(ren)’s friends are and what activities they enjoy in detail.
2. Stability. The evaluator will be interested in which parent is able to provide the greater stability for the child. Stability includes a stable residence and a stable job. You may wish to document the ways in which you have provided greater stability in the past. You obviously will not emphasize those areas that do not favor you.

   To effectively present the areas where you have provided or are able to provide more stability, you may wish to create a detailed charts. Visual aids help to present a clear picture to the evaluator. For example you may wish to create a chronological chart regarding each parent’s residence and how many times the child has changed residences or schools. You may also wish to create a summary of each parent’s employment to demonstrate stable financial circumstances. Independent verification is also very helpful. Where possible, you may wish to procure documents demonstrating residence changes such as leases, purchase agreements or real estate taxes.

3. Endangerment or Neglect. If you are raising issues of endangerment you must relate specific incidents. Endangerment may be physical, emotional or developmental. A calendar may be helpful to document the dates of the incidents. Documentation can carry critical weight with this type of allegation. Documents may include:
   • Medical reports documenting injuries from abuse or lack of supervision;
   • Medical reports documenting complications because of neglect - health issues such as asthma from cigarettes smoke or lice from lack of hygiene.
   • Police reports relating to police calls to the other parent’s home;
   • Any child protection reports;
   • Counseling records for the child or the parent;
   • The other parent’s criminal or driving record;
   • The criminal or driving record of individuals that have significant contact with the minor child(ren);
   • School records may document attendance problems, school performance problems, counseling issues or erratic child behavior while in the other parent’s care or after returning from the other parent’s care.

   REMEMBER: Endangerment only exists if you tie the other parent’s conduct into the child’s care and the child’s best interests. For example, if you allege the other parent has an alcohol problem. It only will be effective if you can relate specific incidents where the alcohol use or abuse affected the minor child(ren). (eg. The parent passed out on the couch while the child played unsupervised. The parent drove the child in the car while intoxicated. The parent was out partying consistently while the child was be cared for by a stranger.)

4. Parenting Plan. The custody evaluator will want to know what your proposal is for parenting. You should be prepared with research, facts and answers. You may wish to write out your answers to the following questions so that your response seems thought out. Do not over prepare, your response should not sound mechanical. The answers should include:
   • Where will the child live? Why is that in the child’s best interests?
   • What school will the child attend?
   • Why is that in the child’s best interests?
   • What will your work schedule be?
   • Will that allow you sufficient time to supervise the child?
   • What schedule do you propose for the other parents?
   • How does that schedule provide stability?
   • Why is that schedule in the child’s best interests? (Remember: The custody evaluator is also looking at which parent is more likely to facilitate contact with the other parent. If you appear to be an unreasonable obstructionist with regard to the other parent’s contact, it may be used against you.)

PARENTING NOTEBOOKS.

In a custody proceeding it is important to maintain a notebook including dates that events occur relating to the care of your child(ren). What is the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party’s parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.

PRIVATE CUSTODY EVALUATIONS.

You may also have a private custody evaluation performed by an independent professional. Oftentimes the only way to combat a biased or unfavorable custody evaluation is with a private custody evaluation. Custody evaluations can be costly and may run anywhere from $2,000 to $8,000.