Primary Residence and Custody

Child custody is an essential matter in any divorce.  Clearly, parents all just want what is best for their children, and during a divorce, ensuring that an order reflecting that best interest is essential.  A good custody order will protect the child’s health and well-being while also maximizing the amount of time the children spend with each parent, to the extent that is possible and reasonable.  Minnesota law requires that during a divorce, a court must establish not only custody, but which parent’s residence is the child’s primary residence.  Unfortunately, this is more difficult than it seems, as the statute fails to define what “primary residence” actually means.

There is a common misconception that “primary residence” is simply a mathematical determination, meaning that whichever parent has more time with the child, that parent’s home is the child’s primary residence.  However, the Minnesota Court of Appeals rejected that approach.  While the actual time that a parent spends with a child is certainly an essential component of determining primary residence, it is not the only component.  In the case Suleski v. Rupe, the Court of Appeals also mentioned that other aspects of the child’s life are important in making this decision, such as where the child attends school, whether the child practices a religion in each respective home, and where the child socializes the most with peers.  In most cases, the primary residence will be where the child spends the majority of his or her time, but the court has made clear it is not a strictly mathematical issue.

Determination of primary residence matters most for the purpose of modifying a child custody order.  When modifying a custody order, if the primary residence is not changed, the court will look simply to the best interest factors to determine whether the new schedule is appropriate.  However, if the primary residence of the child is going to change, the court must make additional findings.  These findings include such issues as one parent unreasonably interfering with the parenting time of the other parent, the parent’s environment endangers the health or well-being of the child, or the child has integrated into the family of the requesting parent with the consent of the other parent.

We have extensive experience helping our clients with custody determinations and modifications. Call us today at (651) 371-9117 and let us help you.

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