Minnesota Custody and Visitation Law
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Minnesota courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
Minnesota law states: “‘The best interests of the child’ means all relevant factors to be considered and evaluated by the court including: (1) the wishes of the child’s parent or parents as to custody; (2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference; (3) the child’s primary caretaker; (4) the intimacy of the relationship between each parent and the child; (5) 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 interests; (6) the child’s adjustment to home, school and community; (7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (8) the permanence, as a family unit, of the existing or proposed custodial home; (9) 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; (10) the capacity and disposition of the parties to give the child love, affection and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any; (11) the child’s cultural background; (12) the effect on the child of the actions of an abuser, if related to domestic abuse … 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; and (13) 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. …
“If modification would serve the best interests of the child, the court shall modify the decision-making provisions of a parenting plan or an order granting or denying parenting time, if the modification would not change the child’s primary residence. … The court may not restrict parenting time unless it finds that: (1) parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development; or (2) the parent has chronically and unreasonably failed to comply with court-ordered parenting time.”
In a 1998 case, Schroeder v. Anfinson, the appeals court upheld the trial court’s refusal to consider a mother’s sexual orientation in her custody action against the father. The trial court ruled that state law did not require it and that it specifically states that the trial court should not consider conduct that did not affect the parent’s relationship with the child.
In a 1996 case, McKay v. Johnson, the appeals court found error in the lower court’s decision to restrict the lesbian mother’s visitation with her children. The appeals court pointed out that Minnesota law states that a court must find that “the visitation is likely to endanger the child’s physical or emotional development” in order to restrict a parent’s visitation. There was no evidence presented that demonstrated that the children were endangered, and the appeals court reversed the lower court’s restrictive visitation order.
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
Minnesota courts will allow a former same-sex partner (with no legal or biological relationship to the child(ren)) to petition for visitation. Minnesota law does not recognize the status of a de facto parent, and as a result a same-sex co-parent cannot petition for custody on this ground.
Minnesota law states: “If an unmarried minor has resided in a household with a person, other than a foster parent, for two years or more, and no longer resides with the person, the person may petition the district court for an order granting the person reasonable visitation rights to the child during the child’s minority. The court shall grant the petition if it finds that: (1) visitation rights would be in the best interests of the child; (2) the petitioner and child had established emotional ties creating a parent and child relationship; and (3) visitation rights would not interfere with the relationship between the custodial parent and the child.”
In 2006, the Minnesota Court of Appeals granted visitation to a same-sex co-parent and ruled that the state law allowing those who have a parent/child relationship to petition for visitation was constitutional.
In a 1991 case, Kulla v. McNulty, the former same-sex partner of the biological mother who was now married to the biological father petitioned for visitation with the child. The trial court pointed to the three criteria that a person who has lived with the child must meet to be granted visitation: (1) visitation rights would be in the best interests of the child; (2) the petitioner and child had established emotional ties creating a parent and child relationship; and (3) visitation rights would not interfere with the relationship between the custodial parent and the child. Although the former partner was able to establish that the situation met the first two criteria, she was unable to demonstrate that it met the third. As a result, the trial court did not grant her visitation rights. The appeals court agreed and said that had there been evidence presented for the third criteria, the trial judge would have been in error.
Citations: Minn. Stat. 518.17; Minn. Stat. §518.175; SooHoo v. Johnson, 2006 Minn. App. Unpub. LEXIS 324 (Minn. Ct. App. 2006); Schroeder v. Anfinson, 1998 Minn. App. LEXIS 601 (Minn. Ct. App. 1998); McKay v. Johnson, 1996 Minn. App. LEXIS 46 (Minn. Ct. App. 1996); MINN. STAT. §257C.08; Kulla v. McNulty, 472 N.W.2d 175 (Minn. Ct. App. 1991).
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Last Updated: 8/4/2006