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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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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