Depending upon your point of view, you may or may not appreciate the fact that Minnesota law contains a presumption of sole physical custody. So many potential clients ask about that. I don't believe it is a question of whether the standard will change, but when the standard will change – based upon recent legislative activity and the progressive approaches that have been taken at the Hennepin County Family Justice Center in Minneapolis.
Fellow Minnesota divorce blogger Gerald O. Williams has published a nice article about the status of a bill in the 2008 Minnesota Legislature that relates to a modification of the sole physical custody presumption to a presumption of joint physical custody in divorce cases. The legislature has opted to refer the matter for a study.
This is certainly not the first time the legislature has looked at the issue. Part of the recent child-support reforms that were discarded was a new presumption of joint physical custody. It is evident that there are many, both in the public at large, and in the legislature, who believe it is time for a shift in thinking on this issue.
Practicing on the banks of the Mississippi River, we appear frequently in both Hennepin and Anoka County. Although the judiciary in Anoka County may claim otherwise, there is certainly a reputation that sticks for failing to award joint physical custody. One of the most frequently uttered statements in my initial consultations with individuals involves fathers telling me, “I live in Anoka County and I hear I don't stand a chance of custody.”
With much less judicial hesitation, we obtain court orders awarding parents joint physical custody in Hennepin County. Many judges in Hennepin County, rightfully, explain to the parties that custody is nothing more than a label. They begin with the fundamental question of what the parenting schedule ought to look like. Once the schedule is established, they can call it whatever they want. They let the parties call the shots without much interference.
We represent a host of individuals who come to us in an attempt to resolve their divorce in uncontested manner. Quite often, these very civil and reasonable individuals are questioned quite heavily by an Anoka County judge about whether joint custody is really appropriate. This happened to a client just last week in Anoka. Mom and dad both wanted joint physical custody and lived 1/2 a mile apart. The judge told them he "wasn't buying it" and that joint physical custody agreements are an "easy way out." The parties couldn't believe it. You know I am going to remove that judge the next time I represent a client who seeks joint physical custody. How is it that a 30 yard swim across the Mississippi can yield such a different process when, in fact, statewide law is what dictates every divorce?
In the end, I'm not arguing for one result or another. Every case stands on its own. Rather, my position is that there ought to be consistency from county to county. But, given the legislative activity on point in recent years and given the success realized by Hennepin County on these issues, the time will come when the presumption of joint physical custody is alive and well.
