Tuesday, February 3, 2009

Minnesota Shared Parenting Report - Part III

Joint Physical Child Custody Presumptions

The Minnesota Joint Physical Child Custody Presumptions would apply to three groups of children; those whose parents are seeking a divorce; whose parents have cohabited but are not married, or; whose parents are unmarried and have never cohabited.

A presumption is defined by Black's Law Dictionary as “[a] legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts.” A rebuttable presumption is “[a]n inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence.” Joint physical custody is defined under Minn. Stat. §518.003(d) to mean that “the routine daily care and control and the residence of the child is structured between the parties.”

The legislative charge instructed the Study Group “to consider the impact that a presumption of joint physical custody would have in Minnesota.” For the most part, Study Group members assumed that the current definition would continue to apply. The Study Group was unable to resolve at least four questions about the meaning of a joint physical custody presumption within the context of Minnesota’s larger legislative scheme.

An initial issue concerned the extent to which the label of joint physical custody would be linked to time spent with children. Some members believed that children would live with each parent on a nearly equal basis. Others thought that children would spend substantial time living with each parent (perhaps ranging from 35%/65% to 50%/50%). Still others suggested that because the statutory definition of joint physical custody does not specify a division of time, the existing rebuttable presumption of 25% time would set a minimum amount of time that each parent would spend with children (unless rebutted). Finally, Study Group members questioned what standard of proof would be required to rebut the presumption.

Thus, Study Group members struggled to reconcile whether a joint physical custody presumption would: (1) assume an equal or substantial amount of time spent with each parent even though no specific division of time appears in the definition of joint physical custody; or (2) apply the label of joint physical custody without likely accompanying change in the status quo with respect to time spent with each parent.

Thus, the Minnesota Study Group encountered what many people have faced when trying to define what the custody arrangement will be and what it is called. I have fiercely debated this issue with other activist. I still stand behind my contention that whether you call it Shared Parenting, joint custody or equal custody it comes down to what is defined by statute. The term I prefer is Shared Parenting, defined as providing for the daily residence, care and support of the child as near to equal as practical. Support in Indiana is defined as 'food, clothing, shelter and medical care'.

The group expressed that distinct issues here. Would this proposed legislation lead to the assumption that joint custody is an equal share of time or is it simply a name change that would maintain the status quo. The Minnesota Study Group has shown the need for clearly defined statute in this regard.

The current custody law provides, that among other factors, the ability of parents to cooperate in the rearing of their child and methods for resolving disputes regarding the rearing of the child and whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing. These are factors which should be considered in all jurisdictions with a modification of th cooperation factor. Currently in Indiana, which has the cooperation factor, all a parent needs to do to get sole custody is say I will not cooperate with the other parent in making these decisions. This takes away incentive to cooperate. To remedy this that factor should be moved to a factor considered in rebutting a presumption. Language such as "The Court shall consider the following factors in rebutting the presumption of equal Shared Parenting; the willingness of the parent not challenging the presumption to cooperate in the rearing of their child." That would require that the court could only use non-cooperation against a parent rather than in that parent's favor.

The Study Group also wondered what standard of proof would be required to rebut the presumption. In civil law, generally, the standard of proof is by a preponderance of the evidence. That is more likely than not. In third party termination cases, such as with CPS, the standard is by clear and convincing evidence. Termination of custody rights, be it through a third party or one of the parents should be the same standard as the result is the same.

Be sure to check back for the next installment,
Minnesota Shared Parenting Report - Part IV
Other Jurisdictions and Potential Positive and Negative Impacts

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