Eric K. Johnson @eric-kent-johnson ?active 1 year ago
In a national legislative season that has seen much press time devoted to “right to work” and voter ID laws, a proposal of a different nature has been wending its way through the halls of the Minnesota Capitol in St. Paul.
Minnesota Senate File 1402, and its sister bill, House File 322, propose what would be a major shift in the determination of physical custody of children of families going through a divorce. Under current Minnesota Statute, section 518.17, the presumption is that one parent will be granted physical custody of the child, with visiting time granted to the non-custodial parent. In determining which parent should be granted custody, the court examines 13 different factors, including:
(1) the wishes of the child’s parent or parents as to custody;
(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
(3) the child’s primary caretaker;
(4) the intimacy of the relationship between each parent and the child;
(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;
(6) the child’s adjustment to home, school, and community;
(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(8) the permanence, as a family unit, of the existing or proposed custodial home;
(9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;
(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;
(11) the child’s cultural background;
(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
(13) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
Minn. Stat. § 518.17, subd. 1(a). To grant joint physical custody over the child, the court must consider additional factors.
The proposed legislation would diverge significantly from this path. The proposed legislation would add a new section to the Minnesota Statutes, Section 518.619. That section would read “Upon request of either or both parties, the court shall use a rebuttable presumption that joint legal custody and joint physical custody, with equal shared parenting, is in the best interests of the child.” The bills lay out the standard for overcoming the presumption, placing the burden on the party challenging joint custody to show, by clear and convincing evidence, that “the other parent’s actions rise to the level of endangering the child” based on a number of criteria set forth in Minnesota law.
This proposed change in the law has generated more than a little coverage in the news media around Minnesota. A search of Minnesota news sources on WestlawNext from the last two years using the following:
Joint! /3 ”physical custody” & da(aft 12/31/2010) (7)
Content: Minnesota News
yields viewpoints from both sides of debate.
In an initiative watched nationally, advocates are lobbying the Minnesota Legislature to pass a bill establishing a presumption of equal child custody rights when parents go their separate ways.
. . . .
It has ”been the cultural custom for a long time” to award sole custody to mothers, leaving many children without the strong presence of a father in their lives, [Rev. Mary] Hovland said.
The Children’s Equal and Shared Parenting Act would right this by ensuring both parents are treated equally in family court, she said. ”This would be quite a change from the law that is in effect now. For so long the mother has been the primary person, and now fathers are asking that they have rights too.”
. . . .
The bill has not faced an easy road. Some of the strongest opposition has come from attorneys and domestic violence advocates who believe joint physical custody and equal shared parenting will be disruptive and costly to implement and could increase the potential for family conflict.
2012 WLNR 4913665
There is clear, and vocal, support both for and against the proposed amendments. In a legislative session where much attention has been devoted to sports stadiums and voter ID, this legislation promises to remain a source of much under the radar debate, and could lead to a major shift in the current state of family law in Minnesota. It will be very interesting to keep an eye on.
Thanks for the reply.
I make no pretense at being an expert, but I did come across a couple of interesting article that might be worth a look:
A PSYCHOLOGICAL PERSPECTIVE ON SHARED CUSTODY ARRANGEMENTS
43 Wake Forest L. Rev. 419
SHOULD COURTS OR PARENTS MAKE CHILD-REARING DECISIONS?: MARRIED PARENTS …OR PARENTS WHO LIVE APART
43 Wake Forest L. Rev. 365
Child Custody Prac. & Proc. § 5:7 Presumption favoring joint custody
I thought the first two might be particularly of interest as they incorporate more from the psychological perspective than would a standard treatise. And they are relatively recent.
As for myself, I have only practiced in a state (MN) where the presumption is in favor of joint legal custody, with primary physical custody awarded to one parent with visiting time to the other. Just based on my anecdotal observations, I would surmise that the ongoing litigation resulting from these arrangments may be just as acrimonious as the non-custodial parent wants to fight for every minute of parenting time they can get. I am also concerned about the effect of what may feel to the parties like a ”winner take all” situation during the actual divorce, making the kids into more of a bargaining chip.
Perhaps the lack of uniformity on this issue across the country, with some states favoring joint arrangements and others favoring sole custody with visitation, demonstrates just how difficult a question it is. But again, I don’t claim any particular expertise on the subject, just a healthy curiosity.
This is a disturbing development.
The clear and convincing evidence standard is quite hard to meet, especially in child custody situations. I would imagine that, if the bill passes, the presumption would be nigh impossible to overcome in most cases. The state is pretty deferential to parents, so it really takes a lot of bad parenting or outright abuse before something rises to the level of ”child endangerment.” Again, the clear and convincing standard makes it that much more difficult, since there is typically very little hard evidence of child endangerment (unless the police have gotten involved).
This is definitely a shift away from the ”best interests of the child” test which is used in nearly all jurisdictions, despite the proposed statute’s text that joint custody is presumed to be in the child/ren’s best interest. This bill is an attempt to subordinate the best interests of the child to the emotional or financial interests of one of the parents.
It has been a long jurisprudential road to get to the ”best interests of the child” test, and I believe that test is the best for determining child custody and parenting time. The courts do a pretty good job figuring out what works best for the child/ren, especially if there’s a guardian ad litem involved. If a parent isn’t receiving the award of parenting time or custody that they want, it’s because the court has determined that such would not be in the child/ren’s best interests. In other words, he or she hasn’t been a good enough parent.
William: Thanks for the very interesting post. The Utah legislature just finished its session grappling with whether to pass a law that presumed joint legal and joint physical custody as being in the best interest of the child. In typical legislative fashion, the legislature compromised as passed a law that presumes that only joint legal is in the best interest; the legislature left a presumption of joint custody for some other time.
William: If I wanted to re-post your blog entry on the MN joint custody presumption proposal, may I do so on my website’s blog?
I would be very pleased to have you re-post this entry on your blog. Please hyperlink back, if you would be so kind, so we can get more traffic through the forum. The more the merrier!
William: How can I track the status of this bill in the Minnesota legislature and know if and when it passes or not?
You can track this, or any, bill on Westlaw.com using the XX-BILLTRK or XX-BILLS databases, or on WestlawNext with the Proposed and Enacted Legislation content set. Just search for the bills by bill number or topic.
I just checked it out, and currently it looks like the MN Senate dropped their version of the bill and opted instead to work off the House’s version. The House adopted the Senate’s amendments and passed the bill on 5/9. It was presenting to the Governer on 5/11 and is currently on his desk awaiting his signature.
This search would pull it up for you on Westlaw.com:
We’ll have to keep an eye on it and see if the Governor signs it.
Governor Dayton just vetoed it.