Parenting Time in Minnesota: Legislative Changes Make Equal Time Easier

custody2Equal access schedules with children have become easier to achieve, following amendments to Minnesota’s parenting time modification statute.

Pursuant to caselaw, a parent who sought to achieve a 50/50 parenting time schedule, following the issuance of a divorce decree granting them less, had to demonstrate the child’s home environment with the other parent endangered their physical or emotional health. Proving endangerment is one of the most difficult things to do in family court.

The new legislation, regardless of whether a parent has sole physical custody or joint physical custody, provides that a parent, so long as a child’s primary residence does not change, need only demonstrate that the child’s “best interests” are served by the modification – if the parent seeking modification wishes to exercise between 45% and 55% of the available time with a child.

“Best interest” is a much easier hurdle to overcome than “endangerment;” up to 17 different factors play a role in the analysis. One such factor involves the wishes of a child, if that child is of suitable age and maturity. The older the child, the more weight the court will afford that preference.

Accordingly, it has become much easier to secure an equal access schedule with a child who is a bit older, and wishes to do so.

A very common scenario involves a young teen who has lived primarily with one parent and, as they age, now seeks to divide time among two households. This new legislation makes the child’s desired outcome much more likely.

Keep in mind, the custody label is not referenced anywhere in the amended statute. Accordingly, even if a parent does not have “physical custody” by label, they can seek to modify the schedule to a 50/50 split without worrying about endangerment (drug use by the other parent, neglect, assaultive conduct, etc.) in the other parent’s home.

This new legislation seems like a step in the direction of a joint physical custody presumption. More to come, this session.


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What’s the Difference Between Physical and Legal Custody in Minnesota?

custody2The phrase “custody” is used to describe the obligations, and rights, of parents regarding the care of their children.

Child custody issues come about when an unmarried couple has a child together, or when married parents get a divorce.

The two types of child custody in Minnesota are physical custody and legal custody.

Legal custody involves a parent being able to make decisions regarding the child’s upbringing and well-being (religion, education and healthcare).

Physical custody is the type of custody that a parent has when the children live primarily with them. It involves the day to day care of a child.

Parents can have joint legal custody, which means both parents have a say in the upbringing of the child. If there is a dispute, the court can intervene in order to settle the conflict.

With joint physical custody, children typically (but not always) split their time with both parents.

If a parent is awarded sole physical custody, the non-custodial parent will be granted visitation (now referred to as a more politically correct “parenting time” award). A schedule will be established. For instance, a child may live with dad, but visit mom on weekends.

In some cases, sole legal custody is granted, but those awards are rare (typically reserved for situations in which there is a history of domestic abuse among the litigants). When both parents are in the picture, the court prefers that they are equally involved in making important decisions for the child.

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Forced Parenting Time Results In Assault Against Dad: A No-Win Situation

Janet Langjahr, a divorce and family lawyer who authors the Florida Divorce Law Blog recently cited an article in the Northwest Florida Daily News about a 12-year-old girl arrested for assaulting her father. The cause of her anger? Dad was trying to force her to be with him during court ordered parenting time. Not sure who was in the wrong…dad for forcing or daughter for striking.

I represent a client with similar issues. The kids are angry with mom about the fact that she had (and is having) an affair with the man across the street. The kids have demanded that she stop seeing him, but mom refuses, citing “adult privilege.” It hasn’t been pretty, but my client has struggled with what he should do to encourage on ongoing relationship between the kids and mom.

According to Brette McWhorter Sember, author of How to Parent with Your Ex:

The first thing to remember is that while it’s always important to listen to your child’s feelings and opinions, spending time with the nonresidential parent is not optional.

Your child doesn’t get to pick and choose when she is going to go or what circumstances will gain his approval. There are days when kids don’t want to go to school, but you don’t let your child stay home on those days. Similarly, you can’t let your child decide to just skip visitation.

Visitation is more than just a schedule. It is a connection to both parents. And continuing to have a connection with both parents is absolutely essential for your child.

Children are not in charge of visitation. Parents are. Children’s opinions are important, but not decisive. Children are not old enough or mature enough to hold the authority to decide when and if visitation happens. If you give your child that authority you will confuse and overwhelm him. Your child wants and needs to know that both parents are an unconditional part of his or her life.

If your child is a teen, she may need more control over visitation than younger children are allowed, however this does not mean that she can write the other parent out of her life. Teens need to feel some control over their lives, and need time for school, jobs, friends, and activities, but they also do desperately need real connections with both parents.

It is upsetting for everyone involved when a child refuses to go on visitation, but if both parents insist together that there is no choice, then no one will be the villain and your child will have to cope with the reality of the situation.

In cases where there is an extended period of disassociation, reunification therapy may be the only option that will work. You can learn more about this process through Mary Ann Aronsohn’s post on Parental Reunification Therapy.

In my opinion, clients find themselves in dangerous territory when children refuse to spend time with the other parent. They can’t win.

If they force the parenting time, the kids may do the same thing to them, or run away, or hurt themselves – they often claim. Sounds silly, but I’ve had a judge issue a decision based upon a young teen’s threat to run away if she didn’t get her way. With due respect, probably not the right basis to make a custody determination, but my point is that these types of threats may be treated seriously by the judge.

If they don’t force the time, the other parent can easily argue that they enabled parental alienation, which may provide a basis for the court to sanction the “innocent” parent by denying custody.

Personally, any parent who simply puts their hands in the air and says “I don’t know what to do” better figure out a solution…fast. Professionals are here to help. The “I tried” argument doesn’t usually stick with the Court. It boils down to the fact that kids are kids and don’t rule the roost. Judges expect a certain level of “parenting,” which includes getting children to do the things they don’t want to – like dishes, homework, and, sometimes, spending time with the other parent.

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What Are The Common Parenting Time Schedules? How Is Child Support Affected By Them?

In recent years, Minnesota’s child support statutes have shifted from a “label-based” model to a “parenting schedule” based model. It used to be that child support was calculated based upon the type of custody (whether joint physical or sole physical) arrangement the parties were awarded by the court.

New emphasis has been placed on the actual amount of parenting time that has been awarded, as opposed to mere labels. For that reason, the label, itself, has basically become meaningless. Some, including me, predict the end of the label in the next five to seven years.

The support guidelines now discount child support for an obligor (the one who pays) if they spend a certain amount of parenting time with their child, or children. Three broad categories exist: uninvolved (less than 10% of the available time with children), involved (between 10% and 45% of the available time with children), and equal (above 45% of the available time with children. The measuring tool is usually overnights.

Parents with less than 10% parenting time receive no credit against their basic child support payment. Parents who are “involved” receive a 12% credit. Parents who are “equal” receive a 50% credit.

We are frequently asked about what sort of parenting schedule might be awarded to a current, or potential, client. With that, we thought it would be helpful to outline the “typical” parenting time schedules that exist, along with the correlating discount percentage against basic child support.

Limited/High Risk Schedules: No child support credit available, as parenting time is less than 10% of available time.

  • Supervised Visits: Visits limited to a supervised safety center a few hours per week. Typically reserved for cases of endangerment. No basic child support credit.
  • As Agreed Upon: Visits are limited, but unsupervised. Scheduled ad hoc. No basic child support credit.

Typical Non-Custodial Schedules: A 12% child support credit is afforded, as time exceeds 10% of available time, but is less than 45% of available time.

  • Every-Other Weekend (F-Su): Bare minimum schedule for involved non-custodial parents. Usually involves parents who live some distance apart, but close enough to facilitate rotating weekends. 12% basic child support credit.
  • Every-Other Weekend (F-Su) & One Evening Per Week: The old “standby,” with children returning each weeknight to the primarily custodian’s residence. 12% basic child support credit.
  • Every-Other Weekend (F-Su) & One Overnights Per Week: Many judges afford overnight visits during the school week. 12% basic child support credit.
  • Every-Other Weekend (F-Su) & Two Evenings Per Week: Slight increase from the “old standby,” but still no overnights during the school week. 12% basic child support credit
  • Every-Other Weekend (F-Su) & Two Overnights Per Week: 6 of 14 overnights. Probably lands in the “joint physical” label about 50% of the time. 12% basic child support credit, with possibility of increase by judge, but not to 50%.
  • Every-Other Weekend (F-M) : Minimal involved schedule includes time until Monday morning school drop off. 12% basic child support credit.
  • Every-Other Weekend (F-M) & One Evening Per Week: One additional overnight e/o Sunday, but still a 12% basic child support credit.
  • Every-Other Weekend (F-M) & One Overnight Per Week: 5/14 overnights. 12% basic child support credit.
  • Every-Other Weekend (F-M) & Two Evenings Per Week: Argument could be made that this borders on 45% of the time, without actual overnights. 12% basic support credit.

Typical Joint Physical Schedules (Equal Time): A 50% basic child support credit is afforded against basic support, as time exceeds 45% of available time.

  • Week On/Week Off: Easiest equal access schedule to follow, but some don’t appreciate a full week without seeing children. 50% credit.
  • Six & One (Overnight): Basically week on/week off, with a day in the middle to see the children. 50% credit.
  • Six & One (Evening) : Same as above, except no overnight during the other parent’s week. 50% credit.
  • Two-Two-Three-Three: Schedule rotates M/T then W/TH, the F, S, S, then starts over, but parent who didn’t have on weekend has M/T. 50% credit.
  • Two-Two-Five-Five: Concrete every M/T with one parent, every W/TH with the other, then rotate F/S/S. Each parent has two days, followed by five days, with the children. 50% credit.
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Birthday Party Or Bridesmaid? A Judge Named Whipple Squeezes Dad

Eric Solotoff, a certified matrimonial lawyer based in Roseland, New Jersey, recently featured an article from the Daily Record surrounding a post-decree parenting time dispute between a mother and father. Here’s how ugly (and downright silly) things can get sometimes:

Ruling against a divorced father’s wish that his daughter help him celebrate his birthday, a judge in Morristown Thursday said the child should have the rare chance to spend that time as a bridesmaid at her godmother’s wedding.

Mother Cortney Hooper of Dover took her ex-husband, Steven Miller, to Superior Court to have a judge decide how their 10-year-old daughter should spend Friday night, even though it encroaches on Miller’s visitation time.

Though Miller and his lawyer, Jamie Berger, argued that this weekend belonged to Miller and that his family planned a Friday night celebration for his 35th birthday, Superior Court Judge Mary Gibbons Whipple said she believed the little girl should have the experience of wearing a special dress and shoes and eating the cake and hearing wedding music.

Saying she didn’t mean to diminish the importance of a child celebrating a birthday with a party, Whipple nonetheless said the wedding experience — and accompanying her bridesmaid mother down the aisle — would be unforgettable for a little girl.

Addressing Miller directly, the judge asked: “Do you really want to say ‘no dress, no cake, no wedding, no bridesmaid, no band? You have to go to my birthday party.’ Do you really want to take that away from her?”

Miller said he hadn’t asked his daughter her preference, but that his time with her is precious and his family will be heartbroken that she won’t be present at his party. Miller did get to see his daughter on his actual birthday, April 7, but the party was planned for Friday.

“A birthday party happens every year. A wedding is once-in-a-lifetime,” Whipple said.

Read Solotoff’s post here. Find the full article cited by Solotoff here. The more entertaining part of this are the comments read by paper readers. Find them here.

What do you think?

Appears to me neither the mother, nor the father, hold all the blame. The lawyers representing them at the time of the divorce should have put language in their divorce decree to cover such a situation – especially if, as it seems, it was a high conflict case.

In the cases we handle, we include specific provisions relating to special days (such as holidays, birthdays and family events) that a child may experience. We also build in a hierarchy so there is no question about whose parenting time trumps whose. For example, “life events,” such as a wedding or funeral, take priority over birthdays. Birthdays and holidays take priority over vacation time. Vacation time takes priority over routine access time. Cut and dry.

Of course, the pessimist will ask, “What if you have a funeral and a wedding on the day?” Our clients typically agree to language that requires them to defer to a parenting time expeditor. A parenting time expeditor is a neutral professional who is given authority by the court, and parties, to make parenting time decisions that are consistent with a divorce decree. If either party dislikes the decision, they have a right to appeal to the district court.

The Minnesota statute concerning the appointment of a parenting time expeditor may be found here.

Here are some key things to keep in mind about parenting time expeditors:

  • Parenting time expeditors are not required to be utilized, but courts strongly encourage them.
  • The benefits in using a parenting time expeditor include prompt attention to a particular conflict (immediate, instead of six weeks, or more, to see a judge) and the avoidance of attorney’s fees and court costs.
  • Parenting time expeditors are usually an experienced matrimonial lawyer or former social worker or custody evaluator.
  • The parties usually split the cost associated with the expeditor, and give the expeditor the authority to allocate costs based upon the reasonableness of the parties to a particular dispute.
  • Parenting time expeditors have their own special retainer agreements and will often require a retainer fee placed into a trust account in order to render services.

Even if the parties haven’t agreed to use a parenting time expeditor, or have agreed but haven’t named one in their divorce decree, some of the best expeditors our clients have worked with include: Kim Brandell, Andrea Niemi, Carol Vander Kooi and Elizabeth Shading. Each have a little different style and are worth considering.

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