Thursday, February 26, 2009

Minnesota Shared Parenting Report - Part VII


I have posted each of the Groups six recommendations in their entirety with my commentary following. The Group states that the recommendations are not comprehensive and they do not represent the unanimous opinion of all Study Group members.

1. We recommend that the Minnesota Legislature fund the collection and integration of data over several years, either statewide or in several representative counties, that can identify basic demographic information (including whether the parties were divorced, never married or are third party custodians), the current ordering of sole physical custody with the mother, sole physical custody with the father, joint physical custody, the percentage parenting time awarded to both parents, the award of child support, and the use of agreed upon parenting time plans. This information would be gathered at the conclusion of each paternity, marriage dissolution or post decree proceeding through the filing of a form by the parties or their attorneys. It is hoped that much of this data collection and integration could be done by interested volunteers.

With presumption being nothing more than a procedure for due process I find it very interesting that the Group would want to have studying done on the outcomes of the proceedings. It is really quite irrelevant what the ultimate outcome of a proceeding is to the due process requirement. Put another way, if a study determined that more females who were accused of shoplifting were found guilty would it be appropriate to consider that when deciding if shoplifting defendants have the right to a speedy trial? Absolutely not. Due process requirements are specifically tailored to address the process not a desired outcome. The Group has shown that it has an obvious desire to affect the outcomes by continuing a discriminatory process.

2. We recommend that any statutory changes enacted by the Minnesota Legislature affecting the custody or parenting of minor children increasingly promote and allow for the cooperative agreements between the parties.

I applaud efforts that seek to have parents cooperating in the rearing of their children. Children can sense the animosity and friction between parents which is not good for them. In this situation I suspect that the recommendation is that the status quo remain in effect. This, as used, has been the basis of denying fathers custody of their children based upon disagreement between the parents regardless of who is the unreasonable one.

3. We recommend that any statutory changes enacted by the Minnesota Legislature affecting the custody or parenting of minor children continue to provide the ability for the court to consider the individual needs of children and families, including the child’s support system of extended family members, friends, and community.

Well even in the so-called $800 billion stimulus plan I am sure I could find $10 billion that will actually go towards benefiting ordinary citizens. Here I have found the recommendation that I agree with. Due process provisions should only relate to the process and should not attempt to predict or affect the outcome. This is the problem I have with things like three strikes laws or mandatory minimums; thy take discretion away from judges to consider the evidence and make a decision.

4. We recommend that any statutory changes enacted by the Minnesota Legislature affecting the custody or parenting of minor children consider the essential importance of the safety of children and parents.

This is a great recommendation. As I go on I find more that I like here. That is upon first impression though. In carefully reading this recommendation it becomes apparent that the Group simply euphonized the description for using Domestic Violence allegations as a factor. Within that I would like to see two recommendations that we have discussed in committee in Indiana; that a petition for a Domestic Violence protection order be completed with the assistance of a victims advocate from the prosecutor's office, and; that criminal penalties be imposed for providing false information on the petition. Additionally, a specific consideration I want to see in custody proceedings is an evaluation of the parents' mental stability. In Indiana the mental health of the parents is already to be considered during custody proceedings. However, evaluations are rarely ordered.

5. We recommend amending current statutes to make it clear that current law provides no presumption for or against joint physical custody, except in cases of domestic abuse, in which case there would be a rebuttable presumption against joint physical custody.

As in Indiana, numerous states have a statutory provision that provides that there is no presumption favoring either parent. However, this is overcome by the prejudices and practices of the unchecked judiciary. A meaningful presumption must require specific findings and conclusions to justify any deviation from the presumption. Both parents should enter the courtroom considered equal partners in raising a child. Then the details can be worked out from there. Any condition, be it Domestic Violence or excessive parking tickets, negates a presumption and thus, there is no presumption.

6. We recommend that, if the Legislature chooses to enact a presumption of joint physical custody, it include a clear definition of the term and how it relates to a determination of parenting time.

You can't nail it anymore than this. A presumption of joint physical custody should be clearly defined as an equal amount of time with each parent. Both parents begin the proceeding entitled to an equal share of time with the child.

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