Legal Solutions  Blog

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.