Caretaking and Custody: What's Changed in Minnesota

Caretaking and Custody: W…

Not all that long ago, two assumptions were prevalent in family law: one parent, almost always the mother, was the “primary caretaker” of the children; and the primary caretaker should receive some degree of preference in custody determinations. A generation or two ago, those assumptions were more reasonable than they are today. Fathers nowadays are much more involved in caring for their children than they were thirty or forty years ago. If there is a primary caretaker of the children in a family, it is much more common for that caretaker to be Dad than it was in the past. Even more often, both parents are so deeply involved for caring for their children that it doesn't make sense to speak of a “primary caretaker.”

Minnesota custody determinations are based on what is in the best interests of the children. In 2015, the Minnesota legislature undertook the first significant revision of the “best interests” factors in years, rewriting them to focus more closely on the needs of children rather than on parents' wishes regarding custody. Since these are the factors the courts consider when deciding custody disputes, it's worth taking a close look about what the revised law says about caretaking and custody.

The Disappearance of the “Primary Caretaker”

Prior to revision, the Minnesota custody statute simply identified “the primary caretaker” as one of the factors to be considered in custody disputes. The statute's current language is a little longer, but much more meaningful: “the history and nature of each parent's participation in providing care for the child.”

Before the statute's revision, only one parent could “prevail” on the caretaking factor. Either you were the primary caretaker, or you were not. The new language reflects the reality of Minnesota families in 2015, in which both parents may participate heavily in their children's day-to-day care. Mom and Dad may trade off getting the kids ready for school or day care, preparing meals, helping with homework, and shuttling children to doctor appointments and activities.

The new language in the statute inquires into not only what each parent does for the children, but the history of their participation. Parents who have minimal involvement with their children, allowing the other parent to do the “heavy lifting” of parenting, ought not be able to decide to suddenly “step up their game” in anticipation of a divorce or custody battle. A judge can, and should, inquire into whether an apparently deep involvement in caring for a child has been an ongoing, long-term pattern, or a newer development.

The Take-Away for Parents


The change in this “best interests” factor is likely a good thing for parents who have been deeply involved in caring for their children, but who would not previously have been designated a “primary caretaker” because the other parent spent more time caring for the children.

Stay-at-home parents and others who were primarily responsible for their children's cares may lament the loss of the “primary caretaker” advantage, but as a practical matter, their heavy involvement in caring for their children will continue to reflect well on them in a custody dispute. And more importantly, on their ongoing relationship with their children.

The bottom line is that it's generally better for kids to have both of their parents involved in the details of their day-to-day care. It's more important to do what's best for your children than what's best for your custody case. Better yet is when these two factors overlap. We invite you to contact us at Mundahl Law with any questions you have about how your role in caring for your child affects your custody matter. We look forward to working with you.

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