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The Importance of Temporary Custody in Minnesota

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.

The general rule is that no testimony is taken at the temporary relief hearing. 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. It is extremely important to take the time at this stage to get affidavits and documentation from all those who have relevant knowledge.

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. 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. 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.

* THE INFORMATION IN THIS ARTICLE IS NOT ADVICE FOR YOUR PARTICULAR CASE. ALSO, THIS INFORMATION APPLIES ONLY TO MINNESOTA LAW, AND NOT TO THE LAW OF ANY OTHER STATE OR COUNTRY.


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Minnesota courts look at many factors in deciding spousal support amounts. A spouse may be entitled to maintenance if he or she cannot support himself or herself despite any marital property received after distribution. Financial resources, employment, education and the personal circumstances of each spouse are considered. A court examines several factors to determine if maintenance is appropriate, and if so, how much and for how long. They include (1) the duration of the marriage, (2) the standard of living enjoyed during the marriage, (3) each spouse's age and health, (4) each spouse's assets, income or ability to earn income, (5) the time needed for the requesting spouse to receive training or education and obtain sufficient employment in order to support himself or herself and (6) the owing spouse's ability to pay. A court can order temporary support while the divorce is pending. Most maintenance is ordered for a specific length of time. Once maintenance is ordered, it can be modified upon a showing of a substantial change in circumstances.
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