Minnesota Statute §518.175, subd. 1, makes it clear that visitation rights are not absolute and are to be exercised only when in the best interest of the child. Manthei v. Manthei, 268 N.W.2d 45 (Minn. 1978).
In a situation where a child is too young to express a parental preference, custody should be awarded to the primary caretaker (unless there is a showing that parent is not fit to have custody). Steinke v. Steinke, 428 N.W.2d 579, 583 (Minn.App. 1988) (quotation omitted) (citing Pikula v. Pikula 374 N.W.2d at 713). Minnesota law has indentified the primary parent as one who performs duties such as:
1) planning and preparing meals;
2) bathing, grooming and dressing;
3) purchasing, cleaning, and care of clothing;
4) medical care, including trips to the doctor;
5) arranging for social interaction with peers (play dates);
6) arranging daycare;
7) putting the child to bed at night, attending to the child during the night, waking the child in the morning;
9) educating (religious, cultural, and social, etc.); and
10) teaching elementary skills such as reading and writing.
Additionally, a primary concern in determining custody is maintaining regularity and stability in the child’s life. Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn.App. 1986).
For example, in a situation where one parent is away from the children often due to travel for work, or utilizes nannies and babysitters during time with the children, it may be difficult to prove that parent should have custody because he or she does not provide much in the way of primary care duties. Custody in this case, would likely go to the parent who performs the duties above.
Additionally, an argument could be made that the parent who does not provide those care duties is unable to do so and should have limited time with the children. For instance, the children should not spend overnights with this parent because he or she is not accustomed to the bedtime or waking routines. Keeping the children most often with the parent who has provided these duties may help maintain stability and regularity for them.