Filing for Child Custody in Minnesota

Opening a case is the first step toward getting your parenting plan approved by the court or having a judge decide a court order.

Cases involving child custody can be filed two ways: jointly or separately.

If you and the other parent agree on everything, you can file a joint petition.

If there is any disagreement, just one parent files a petition. This parent (the petitioner) serves the other parent (the respondent) with the petition — in other words, they officially deliver it. The respondent can then file a response.

Knowing where to file

If you are divorcing or separating, file in the county where you or the other parent lives. If not, file for custody in the county where your child lives. Return to the original court when asking to change or enforce an existing order.

Each county has at least one courthouse. In large counties with multiple courthouses, custody and paternity cases are heard in the family court location, unless the case involves another issue that needs to be heard in the juvenile court location (like adoption, child protection or juvenile delinquency).

Knowing your county's judicial district helps you submit paperwork. Hennepin County is in the Fourth District, and Ramsey County is in the Second District. If you live in one of the other 85 counties, find your Minnesota judicial district online.

Selecting a type of case

Before opening a case, you need to know what you want to do: dissolve your marriage (divorce), separate, decide child custody, or change or enforce an existing order.

Dissolution of marriage (divorce)

When a divorcing couple has a child under 18 together, their divorce case addresses child custody.

In Minnesota, at least one parent has to be a resident of the state for 180 days before filing for divorce.

If you and the other parent agree on all issues, file the Joint Divorce Petition with Children forms.

If you do not agree with the other parent on all issues, one of you files the Petition for Divorce with Children forms. The other files an Answer and Counter Petition with Children no more than 30 days after being served.

Legal separation

Separation cases are for two people who want to remain legally married but no longer live as a couple. This is sometimes used by spouses whose religious beliefs prohibit divorce or who have not lived in Minnesota long enough to qualify for a divorce.

When a separating couple has a child under 18 together, their separation case addresses child custody.

Consult a lawyer about how to file for legal separation because the court doesn't publish forms for this.

Custody

This pathway is for unmarried parents who want a parenting plan order (or a basic custody order, which is less common).

Before your custody case can be decided, you must both establish legal parenthood. This likely happened automatically for the mother.

If you and the other parent agree on all custody issues, use the Joint Petition to Establish Custody, Parenting Time, Child Support forms.

If you do not agree with the other parent on all issues, one of you files the Request to Establish Custody and Parenting Time forms. The other files a Response to Request to Establish Custody and Parenting Time no more than 21 days after being served.

Changing or enforcing an existing order

If you already have an order about custody, it may include rules for what you must do before filing a motion to change or enforce it. For example, some orders say that parents must try mediation before returning to court about a disagreement.

To make a motion for a court hearing, fill out the right form. The generic Family Motion may meet your needs. It asks for information about the original case, including the court district, file number, and the names of the petitioner and respondent. If you were the respondent on the original order, you're still the respondent, even though you are filing the motion.

You must write an explanation of what you want the court to do. If you do not include enough detail, the judge may dismiss your motion.

If you are served with a Family Motion, you can use the generic Family Responsive Motion to respond to the requests or allegations.

How to file

If you have a lawyer, they'll file the forms online for you.

If you are filing by yourself, read the instructions for each form carefully. Omitting necessary information could lead to fines and dismissal of your case. File your forms online or in person.

If you file in person, you may need to make photocopies for yourself, the other parent and the judge. The court clerk will let you know, and they can make the copies for a fee.

Experts strongly recommend consulting with a lawyer before you file. If you can't afford representation, you can apply for free and low-cost legal aid at Law Help MN.

Fees

Regardless of whether you have a lawyer, you must pay fees to file your case. The fees may be split into categories: a base fee for your type of case, fees for relevant forms and other mandatory fees. If you cannot afford them, you can apply for a fee waiver.

When filing for divorce, separation or custody, the petitioner pays about $300 to $400. In a contested case (a case where parents don't agree), the respondent pays the same amount when they file their response. Some people choose not to file a response for that reason, against the advice of most legal experts.

When seeking to change or enforce an existing order, you pay $75 to file the motion. The other parent pays the same amount to respond.

The court will also charge you for copying, scanning or printing.

Five ways to serve the other parent

The other parent has a right to know about your case and any hearings. That means they need to see paperwork. Getting it to them is called service or serving the other party.

You are not allowed to deliver the papers yourself, and the court staff will not do it. Papers can't be served on a Sunday or holiday, and email isn't a valid delivery method. But you have options. Here are different ways to serve papers.

1. Have your lawyer serve the papers. They reach the other parent's lawyer through Minnesota's e-filing system, or (if the other parent has no lawyer) your lawyer gives the papers to the other parent in person or by U.S. mail.
2. Hire a process server for in-person delivery. Private agencies charge about $50. You can also ask the county sheriff's office if they offer this and how much they charge.
3. Ask someone you trust to deliver papers. Anyone over 18 can do it — it just can't be anyone involved in your case. After they're done, the server completes an Affidavit of Personal Service in front of a notary. The server gives the affidavit to you, and you file it with the court.
4. Send the papers through U.S. mail to the other parent's address. Write your return address on the envelope. Avoid certified or registered mail that requires signature or pickup because the court may then require you to prove that the other parent received the papers.
5. Publish a notice in a newspaper. This is called service by publication. The notice must appear once every week for three weeks. You need court approval to do this. The court may approve it if no one can locate the other parent. In a child support case, the child support magistrate would give approval.

Responding to service

If you are the respondent, it's important to file your response on time. The judge will review the response before your first hearing. Don't wait until the hearing to voice your concerns.

If you miss the deadline to file your response, you leave the other parent in control. The other parent can tell the judge whether they want to allow you more time. Ultimately, the judge can rule on your case without your input.

Preparing for what comes next

In most counties, you will have an initial case management conference with the judge and the other parent a few weeks after filing. Here, you will learn your next steps in the legal process.

Take advantage of technology to be fully prepared for your conference and the steps that follow.

The Custody X Change online app offers custom custody calendars, parent-to-parent messaging, an expense tracker and more.

You can use it to put together proposals for the other parent, negotiate, prepare settlement paperwork or organize evidence.

Be prepared for every step of your case with Custody X Change.