Physical custody refers to the primary residence of the minor children. In other words, it determines where the minor children will reside.

There are four major factors in determining a change of physical custody, they are as follows:

• A Court may not change physical custody from one parent to the other unless the change is in the best interests of the child and the moving party show four factors necessary for the court; or
• Both parties agree to the change; or
• The child has been integrated into the family of the non-custodial parent with the consent of the custodial parent; or
• The child's present environment with the custodial parent endangers the child's physical or emotional health or impairs the child's emotional development and the benefits of a change of custody outweigh the harm.

Where the parties do not agree to a change of custody, and the child has not been consentingly integrated into the family of the non-custodial parent, a change of custody can only be accomplished by bringing a Motion to the court. The party seeking the change of custody must show these four factors:

1. Change of circumstances
2. Endangerment
3. Best Interests
4. The benefit of the change outweighs the harm.

In practice, this means that there must be strong evidence in favor of the change of custody. Examples of strong evidence are as follows:

• Change in circumstances
• Endangerment, such as neglect, physical, sexual, emotional, drug abuse by the custodial parent.
• Best Interests of the Child, per Minnesota Statute 518.17
• Does the benefit outweigh the harm of the change?

In Minnesota there is no particular age at which a child gets to decide which parent they want to live with. Generally, the older the child, the more weight the child's preference carries, whether in the initial custody determination or in the context of a Motion to modify custody. Still the child's preference alone is insufficient basis for modification of custody. The four above factors must be met for a court to grant a change of custody.

What is the "Child's Best Interest?"

The child's best interests are determined by evaluating the thirteen (13) factors, which have been codified in Minnesota Statute Minn. Stat. 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:

• The wishes of the child's parent or parents as to custody;
• The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
• The child's primary caretaker;
• The intimacy of the relationship between each parent and the child;
• 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 interest;
• The child's adjustment to home, school, and community;
• The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
• The permanence, as a family unit, of the existing or proposed custodial home;
• The mental and physical health of all individuals involved; except that a disability 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;
• The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue education and raising the child in the child's culture and religion or creed, if any;
• The child's cultural background;
• The effect on the child of the actions of an abuser, 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;
• Except in cases in which a finding of domestic abuse 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.

There are few issues in a divorce more emotionally charged than the proper placement of the children. When parents cannot agree on what is best for their children, the courts will decide child custody by determining what is in the "best-interest" of the children.

In most cases, county workers, custody evaluators, or a Guardian Ad Litem will carry out a study ( Minn. Statute 518.165) . Many judges defer to the recommendations of the evaluators, because unlike the parties or witnesses, they are deemed to be independent witnesses without any personal interest in the outcomes. The custody evaluator will create a report regarding what he or she believes is in the child(ren)'s "best interest".

  ** The above information is meant to be informative and educational only.