Thursday, January 29, 2009

Minnesota Shared Parenting Report - Part II

The Status Quo in Minnesota; statute, data, perceived pros and cons

The Status Quo in Minnesota; statute, data, perceived pros and cons

As with nearly all other states, in Minnesota divorce and parentage proceedings, child custody is decided based on the “best interests of the child” standard. Minnesota uses thirteen factors set forth in statute to make an individualized determination for each child. One of these is "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". Minn. Stat. § 518.17(1)(a)(10)

Parents also have the option of creating a parenting plan which must include a schedule, address decision making responsibilities, and identify a method of resolving disputes. These are reviewed by the court to assure that they are in the best interests of the child or children.

Minnesota applies the same standards to the term “joint legal custody” as nearly all other states. These are the major decisions determining the child's upbringing, including education, health care, and religious training. Minnesota defines the term “joint physical custody” as how “the routine daily care and control and the residence of the child is structured between the parties.”

A benefit to advocates of Shared Parenting is that Minnesota already has a rebuttable presumption that a parent is “entitled to receive at least 25 percent of the parenting time for the child.” A 50/50 presumption would be more fitting with maintaining the continuity of most households where the parents are married and living together. In addition to the parenting time presumption, there are two statutory rebuttable presumptions related to child custody. First, there is a rebuttable presumption that upon request of either or both parties, “joint legal custody is in the best interests of the child.” This is an advantage over many other states, like Indiana, who put the burden upon the moving party to show that it is in the child's best interest. Second there is a rebuttable presumption that joint legal or joint physical custody in not in the best interests of a child if there has been domestic abuse. The caution here is that although it is rebuttable, domestic violence definitions require no actual violence but merely the stated fear that it may occur.

Like Indiana, Minnesota has no statutory preference or presumption for or against awards of joint physical custody. However, historically Minnesota courts preferred not to award joint physical custody based on concerns about lack of routine and stability for children and parental inability to cooperate and resolve disputes. “Regularity in the daily routine of providing the child with food, sleep, and general care, as well as stability in the human factors affecting the child's emotional life and development, is essential, and it is difficult to attain this regularity and stability where a young child is shunted back and forth between two homes.” Kaehler v. Kaehler, 18 N.W.2d 312, 314 (1945)

While the courts have not expressly overruled the case law preference, some more recent cases do not recognize it. For example, in 2005 the Minnesota Court of Appeals stated that “[t]here is neither a statutory presumption disfavoring joint physical custody, nor is there a preference against joint physical custody if the district court finds that it is in the best interest of the child and the four joint custody factors support such a determination.” Schallinger v. Schallinger, 699 N. W.2d 15 (Minn. Ct. App. 2005).

Nevertheless, because old case law disfavoring joint physical custody may continue to impact trial courts’ decisions, some Study Group members expressed concern about the potentially unsettled state of the case law.

Lack of Data on Minnesota Child Custody presents problems for the study group -

Lack of data collection concerning Minnesota child custody outcomes posed a major roadblock for the Study Group in completing its work. The Study Group had particular data which it wanted to consider but there is no collection process for this data. It therefore, may be necessary to seek a mandate for data collection prior to seeking presumptive joint custody in your jurisdiction. Seven data sets that the group wanted to see where;
(1) the frequency of sole and joint physical custody settlements and awards;
(2) whether the frequency of sole and joint physical custody awards has changed over time;
(3) the rate at which mothers and fathers obtain sole and joint physical custody;
(4) whether sole or joint physical outcomes are associated with geographic location, representation by attorneys, settlement or judicial decision, marital status, socioeconomic status, and/or family ethnicity and cultural background;
(5) which issues are most likely to be settled or contested;
(6) characteristics of parents involved in contested proceedings; and
(7) the frequency of modification and enforcement proceedings associated with sole and joint physical custody outcomes.

The only relevant Minnesota research found by Study Group members compared custodial
outcomes in 1986 and 1999, in the context of a study on child support. The authors reported that in 1986, six percent of the cases sampled involved the outcome of joint physical custody but that by 1999, the number of joint physical custody outcomes increased to twenty-three percent. Both data sets were provided by Kathryn D. Rettig & Kerry Kriener-Althen, Consequences of Minnesota Child Support Guidelines for Children of Divorced Parents, FALL 2003 CURA REPORTER 10, (2003). That study was useful in that it documented the trend of increasing use of joint physical custody between 1986 and 1999, but it did not address child custody outcomes between 1999 and the present.

Perceived Strengths and Weaknesses of the Current System -

he study group used anecdotal evidence from public submissions as well as their own experiences and opinions to come up with the two list below. The first list what study group members thought to be strengths while the other list perceived weaknesses.

Perceived Strengths of the Current System -
• The “best interests” standard is child-focused and promotes individualized consideration of each child’s situation and needs.
• A range of child custody options is available to families. Parents can create parenting plans tailored to meet specific family needs.
• Parents can choose to have joint physical custody.
• Programs such as parenting education and various alternative dispute resolution methods can assist parents in reaching an amicable settlement.
• Many cases involving child custody and parenting time are settled by the parties without significant judicial intervention.
• Recent legislative changes with respect to child support and relocation have reduced parental incentives to seek particular child custody labels.

Perceived Problems with the Current System -
• “Best interests” determinations require information that is not consistently available due to insufficient court system resources (including risk assessment and factual development).
• Because the “best interests” standard requires individualized application, outcomes can be difficult to predict and are viewed by some parents as involving too much judicial discretion.
• Some parents entering the court system encounter financial, cultural, and linguistic barriers that limit participation.
• Increasing numbers of parents are not represented by counsel.
• Some parents believe that courts may be biased against fathers when making child custody determinations.
• Some parents believe that nonresidential fathers may be discouraged from actively parenting children.
• Some parents believe that courts may be biased against mothers, particularly those who raise concerns about battering and safety issues.
• Some parents believe that use of the best interests standard is an unconstitutional violation of a parent’s right to control the care and upbringing of children.

The Study Group members did not reach consensus about theses two list. The purpose of the discussion was to exchange views about the functioning of the current system preliminary to exploring potential ramifications of a joint physical custody presumption.

The "best interest of the child" standard had consistently provided difficulty in both the legislative arena as well as in the courtrooms. This is a term that is not clearly defined and appears in both the positive and negatives for presumptive joint physical custody. I believe a more appropriate standard is the best interest of the family. If the interest of all family members are not held in high regard then there is no way that the parents can do what is best for the children. Far too many judges lack the cognitive or intellectual skills required to make the connection between the best interest of the parents being in the "best interest of the child".

Be sure to check back for the next installment,
Minnesota Shared Parenting Report - Part III
Joint Physical Child Custody Presumptions

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