Temporary Custody in Minnesota
- by Eric C. Nelson, Attorney

In cases where the issue of custody is contested, there is often an initial hearing where the Court decides issues of custody, visitation, child support, spousal maintenance, occupancy of the homestead, etc. on a temporary basis, pending issuance of the final Judgment & Decree or Divorce — which can be several months or even a year or more in contested custody cases. [1]

The general rule is that no testimony is taken at the temporary relief hearing. [2] Rather, the Court decides the issues of temporary custody, etc., on the basis of parties’ respective motions and affidavits, and on the arguments of counsel made at the hearing. [3] It is extremely important to take the time at this stage to get affidavits and documentation from all those who have relevant knowledge.

Your own affidavit as a party is almost always going to be the most important affidavit by far. This affidavit should be a document prepared together with your attorney. I've noticed that far too many attorneys simply have their clients write their own affidavits, and then notarize them, without any apparent revision at all. That is NOT effective representation.

Legally, the fact that one party or the other is granted temporary custody has no bearing on which party should ultimately be awarded permanent custody in the final Judgment and Decree of Divorce. [4] However, it is important to understand that the temporary custody order represents the Court’s best initial guess as to which parent is the more suitable custodian, and it sets the tone for subsequent the proceedings.

Temporary orders may be modified at any time during the pendency of the proceedings. [5] However, in practice, the Court will not seriously consider a motion to modify temporary custody unless there has been a demonstrable change of circumstances since the prior order. The most common reason for modification of a temporary order is the issuance of the custody evaluator’s report.

NOTE WELL: If you intend to seek custody, it is important that at the time of separation you do not move out and leave the children in the care of the other party in the marital home. If you do so, the other parent will certainly argue that he or she should be awarded temporary custody of the children simply to maintain continuity and stability for the children.


Footnotes:
  1. Minnesota Statute section 518.131.
  2. Rule 303.03 (d), General Rules of Practice.
  3. Id.
  4. Minnesota Statute section 518.131, Subdivision 9(a).
  1. Minnesota Statute section 518.131, Subdivision 9(b).