Stuart Showalter is a child custody policy advisor to Indiana state policy makers as well as attorneys on child custody cases. For parents he offers child custody based life coaching to help them maintain control of their lives, increase their fitness as parents and manage their litigation so they can truly serve the best interest of their children. He provides this Law Blog as free opinion on various issues. Reader submissions of topics are welcomed. Send to Stuart@StuartShowalter.com
Showing posts with label minnesota shared parenting. Show all posts
Showing posts with label minnesota shared parenting. Show all posts
Minnesota Child Custody Presumption Study Group hearing on October 27, 2008. List of Speakers at Public Listening Session, Name Organizational Affiliation (if any), Focus of Testimony 1. Julie Moylan, Domestic violence 2. Joan Lucas, American Academy of Matrimonial Lawyers, Best interests 3. Lance Johnson, Child Speak, Best interests 4. John Mazzitelli, Best interests 5. Tom James, Domestic violence 6. Donna Dunn, MN Coalition Against Sexual Assault, Best interests 7. Les Jobst, Fathers 4 Justice Fathers 8. Leigh Ann Olson, MN Coalition for Battered Women, Mothers 9. Todd Harris, Center for Parental Responsibility, Fathers 10. Kathrun Eagle, Domestic Abuse Intervention Programs, Domestic violence 11. Quincy Boyle, and John Corliss, Employment Action Center, Diverse communities 12. Charlie Hurd, National Coalition of Free Men, Best interests 13. Joseph Field, Private attorney, Fathers 14. Troy Molde and Nancy Lazarayn, Best interests 15. Tami Peterson, MSBA Family Law Section, Best interests
Written submission were also received by the Study Group. I have highlighted a few of these here.
Katherine Eagle of the Domestic Violence Response Team Family Crimes Unit stated that it is her belief that if one parent objects to the court considering both parents to be entitled to equal consideration before the court then the court should NOT presume that both parents should be entitled to maintain a relationship with his or her child and await hearing evidence to the contrary.
Thomas P. Kelly, Senior Assistant County Attorney, says that in the "vast majority of cases the male parent shows tragically little interest in their child beyond the strictly financial issue". This guy must be a real hater of men. It clearly makes one wonder what a man has done to him or if he did something to his own child and now has a self-loathing for fathers. I play on a real football team made up of fathers who are coaches or have children who play in our Youth Soccer Association. I have heard the term 'soccer mom' and even seen the stickers on mini vans but I suspect that once the season starts again this year we will see more fathers than mothers out there once again. Thomas Kelly may find this unbelievable but they will actually be coaching, cheering or otherwise supporting the children by being there, not by writing a check.
Glen A Norton a father of two and an attorney who has been in practice since 1986 opposes a presumption that a child is entitled to continue having access to both parents because he says "a presumption that parents should have nearly equal time erroneously focuses upon parents."
Bernard Borene who has practiced family law for 13 years and been a judge for over 24 years says that he is "not in favor of a presumption of joint physical custody". He does not believe that children should be entitled to a presumption that they may continue their relationship with both parents.
Kathleen M. Newman an attorney worries that a presumption that children maintain a relationship with both parents would have an affect on child support issues. She believes that the due process presumption of equality is not appropriate unless both parents first agree to equal joint custody. I believe that Kathleen was also an opponent of integrating the school unless all the white people first agreed to it.
The most biased and amazing letter came from Judge Thomas G. McCarthy who stated that the answer to the question of should parties be entitled to equal consideration for child custody upon the first appearance in the courtroom is "Clearly and unequivocally, NO."
Many other people who reap huge financial windfalls from destroying the lives of children, especially judges, also continued with their expression of opposition that a court, upon first viewing of the parents, should consider that the children are entitled to maintain a relationship with each parent.
On page 157 of the report the letters in support of a presumption that children maintain a relationship with both parents begins. Many of these letter writers were school teachers, social workers or those otherwise intimately involved with children of separated parents on a regular basis. There were also some attorneys, a judge and a state representative in addition to numerous parents. Most of the supporters of a presumption favoring children's right to have access to both parents were women but not those who profit from the destruction of families. There was significant consideration for the legal implications and rights of children expressed by most of the favorable letter writers.
The last section is a collection of letters than neither showed favor or disfavor to the due process presumption of equality.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Fiscal Impact of Adopting a Joint Physical Child Custody Presumption
Today's presentation brings us to what will be the most relevant consideration to whether presumptive joint physical custody has any chance of becoming law. Those of us who advocate for and love children will find the answer to what is most relevant to be easily answered; that is, what is best for the children and their parents. When we enter the realm of government policy we will find that what we consider relevant gets pushed far down the ladder and something else will be paramount. Specifically, that issue will become what will be the financial impact. A committee was appointed to compile information concerning potential financial impacts of adopting a joint physical custody presumption.
The committee report was prepared by Melissa Froehle, J.D., Jill Olson, J.D., and James Street, J.D. It specifically addresses fiscal impacts for families, the Department of Human Resources, and Minnesota Courts. There are two very important findings in this section of the report. One is that joint physical custody of children is in their best interest and the other is that it will cost taxpayers more money. Legislators will be faced with making the decision or what is in children's best interest of what will cost taxpayers more money.
The report opens by stating that many of the financial impacts would be lessened if the status quo was maintained, that is, if a presumption of joint physical custody avoids an exact division of parenting time with each parent.
The first scare tactic used was to say that the presumption has the potential of decreasing child support awards to families and children potentially in need. If child support is calculated using a presumption of equal or nearly equal time, both parties are given a significant credit. This credit is based on parenting time they are presumed to be exercising and expenses they are presumed to be incurring while exercising that parenting time, thus reducing the amount of child support paid by the obligor. Although not explicitly stated what this report is saying is that one parent who would have received a high support award will no longer be receiving that and will have to start contributing to paying for the care and support of the children as an equal partner rather than a lottery winner.
In general, the current income shares child support model presumes that regardless of the custodial label, unless the parties have equal time, equal incomes and are sharing expenses equally, there will be an award of child support from one party to the other. The guidelines are applied with the purported goal of getting the same proportion of parental income to the child that he/she would have received if his/her parents lived together. However, as applied, the child support guidelines have never closely sought to achieve hat goal but have instead been used to create a financial windfall for the custodial parent. Opponents of ensuring children their right to access to both parents state that this goal may not be attained and necessary support may not get to children if a presumption of joint custody is created and defined in a manner that is not compatible with the current guidelines. Specifically, they want one parent to still be labeled a NCP and forced to pay support.
A parent who gets more parenting time due to implementation of a presumption of joint physical custody could have increased costs such as food and transportation, while the parent who has less parenting time due to a presumption of joint physical custody could have decreased costs for food and transportation. This would be offset by the NCP paying less in support and the CP having less to pay in expenses. If child support payments truly reflect the cost of providing support to a child then neither parent would notice a difference in their income and expenses applied to supporting the children.
The eligibility for public benefits would need to be adjusted for the parenting time situations in equal joint custody. In general, the benefits system is not set-up to accommodate both parents in low-income families where the parents live apart but each is significantly involved in parenting the child and providing a home for the child. Currently the parent that applies first for public assistance is the eligible parent. The system may need to be changed to where benefits are pro rated to the amount of time a parent has custody. That is, a parent with the child 50% of the time would receive 50% of the eligible food stamps while the other parent would get the other 50% instead of whomever applies first getting 100%. The same could be done for public benefits such as housing, child care and Had Start. Similar adjustments may need to be made for income tax deductions and the Earned Income Tax Credit (EITC). This could easily be accomplished through assignment years such as the mother gets credits on odd numbered years and father gets even numbered years.
The report states that "Increased costs to the Department of Human Services is a major concern" but that the emotional well-being of children is not a major concern. To be eligible for public assistance recipients must assign their right to child support payments to the State which provides the assistance. The State of Minnesota, as Indiana and many other states do, opposes a presumption of equal Shared Parenting. In those instances in which there is a presumption of joint physical custody, that requires the parties to share parenting time equally, the amount of child support ordered in these cases would drop dramatically. Because receipt of child support results in a dollar for dollar offset in public assistance payments, lower child support payments will result in higher assistance payments from the State, and a heavier burden on taxpayers.
The report also indicates that the state would see a reduced rate of public assistance arrears collection owed to the State. When establishing a child support order on behalf of a public assistance recipient, the State, through the County and County Attorney, can also seek reimbursement for periods of time public assistance was furnished by the State for the benefit of a child. The report claims that a parent, not both parents, of a child is liable for the amount of public assistance furnished to and for the benefit of the child, which the parent has the ability to pay, for two years immediately proceeding the commencement of the action.
Under current Minnesota law the Recognition of Parentage does not give any custody or parenting time rights to the father as the rights of the child guaranteed through the United States Constitution require. Therefore, the custodial mother has property rights to the child and becomes sole legal and sole physical custodian until a court orders otherwise. Thus, currently, in such cases, an order is issued and the custodial mother receives a child support award under the guidelines as a sole physical custodian.
However, no such mandate is applied to married parents. Thus, the State , in order to get reimbursed for public funds expended on welfare assistance, seeks to completely separate the child from one or his or her parents so that parent can be ordered to pay the maximum child support allowable which the State can then intercept and keep. The report cautions legislators that if they allow a presumption of equal Shared Parenting then child support orders will be lower and the rate of collection will also be lower as the State’s collection is limited to 20% of a smaller amount. This will presumably result in a cash flow issue for the State.
The report cautions that the courts may face a challenge by the strategy I have developed and have been pushing parents to use as a tool to achieve the rights for their children that they deserve. The Report specifically states that, as is in my plan, the Courts would have an increased burden from unrepresented parties who may dispute custody if a presumption is enacted. With significant numbers of unrepresented parents and decreasing court resources available to help set a parenting time schedule, the judge may need to step in and use hearing time to assist the parties in presenting evidence or testimony to accomplish a schedule. As a result, an increase of custody cases in district court, coupled with significant numbers of unrepresented parties and decreasing court resources, could result in increased costs to the court system.
This is a very important observation and admission in the Report. I am currently in school seeking a law degree as are other members of our organization. It is our goal to teach law to the masses of parents whose children are being denied access to their parents. Once we have enough litigators organized in a common plan we can control the courts. In Boone County Indiana we have already managed to get criminal cases dismissed by demanding jury trials and filling the courts with other civil litigation. The Court's simply do not have the resources. This is how we will win this battle.
The Report concludes by stating that there is no reason to believe that a Joint Physical Custody presumption would create more thoughtful orders. Without specific intervention by the court, or more available court resources, we could expect orders to include such phrases as “joint physical custody as the parties agree.” The consequences to children and parties of such vague language when it relates to custody arrangements are more significant than when it relates to parenting time, and more likely will result with increased motions to court to sort it out later.
Therefore, any presumption of Shared Parenting law needs to clearly define what that presumption is. Not forcing judges to adhere to the due process rights of all parties will result in increased litigation and court costs as the Report has indicated. We have seen from this section of the Report that if a presumption of Shared Parenting is passed then more children will be in equal joint custody living arrangements based upon their best interest. But also, that the State will not be able to intercept and retain child support payments in as great of an amount as has been done in the past. A very important admission that was made in the Report is that self-represented litigants can overburden the courts by paperstorm. That is the filing of continuous motions and seeking hearings on them.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Study Group Discussion of the Impact of a Presumption of Joint Physical Custody
Todays analysis begins with the testimony of three Minnesota practitioners who were invited to make brief presentations to the Study Group concerning the potential impact of a joint physical custody presumption on children, fathers, mothers, parents from diverse communities and socio-economic status, and families who have experienced domestic violence. However, it is apparent that this selection was made with the intent of convincing the Study Group to oppose the presumption. Impact of Joint Physical Custody Presumption on Children
Mindy F. Mitnick in her testimony attempted to cast presumptive joint custody in a bad light by saying that the one-size-fits-all nature of joint physical custody presumptions is detrimental to children for three reasons. However, her testimony missed the obvious and glaring reality which I will point out.
She first expressed that parents in low conflict custody litigation who are best suited for sharing joint physical custody will do so without need of a legal presumption. These are parents with good communication skills, flexible styles of decision making, and the ability to put the needs of children first, and who also live in geographic proximity to each other. She feels that parental conflict levels are the best predictor of children’s post-divorce adjustment. She then makes the jump beyond a logical connection to say that adoption of a joint physical presumption would increase the number of children exposed to high and moderate conflicts. She states that high conflict parents are not suited for joint physical custody because of the results on children; heightened aggression, impulsiveness, and anxiety, poor social skills and other emotional problems.
Mitnick's fundamental error in her analysis is a failure to accept or understand what a joint physical custody presumption is. Mitnick portrays a due process requirement that requires a court to view litigants as possessing the same rights regardless of gender as being a final decree awarding custody. There is a great danger in the misdirection of people like Mitnick, who are advancing a an anti-family agenda, in that they use actual results and fear to speak to an issue which a joint physical custody presumption does not apply. Specifically, a joint physical custody presumption does not mandate any custody decisions. It is only a due process first step. The courts may still make custody decisions as has been done in the past but with an equally evidenciary burden on each parent. Impact of Joint Physical Custody Presumption on Fathers
Melissa Froehle analyzed the implications of adopting a joint physical custody presumption for custodial and noncustodial fathers. Historically proponents urged creation of a joint physical custody presumption in part because the label carried implications for calculation of child support and the ability of the physical custodian to relocate. However, both of these issues have been addressed through recent statutory changes and are not applicable here.
Froehle feels that it is difficult to predict how adoption of a joint physical custody presumption would affect the amount of parenting time fathers receive because under current law, which presumes 25% parenting time for fathers, the label of joint physical custody is not tied to a set amount of parenting time. Thus, with a presumption, the amount of parenting time could increase, remain the same, or perhaps decrease if heightened conflict causes fathers to “drop out.” This testimony directly contradicted Mitnick who felt that the due process presumption results in mandatory equal parenting time. Froehle made some additional points about father's parenting time which included. • The “type” of time a father spends with his children. The “type” of parenting time has significance for creating a meaningful father-child relationship. While research shows that the quality of time fathers spend with children is more important for child well-being than the quantity of time, fathers may have more overnight parenting time under a joint physical custody arrangement and this could help fathers maintain a meaningful ongoing role. • Future modification of parenting time. With joint physical custody, parenting time could more easily be modified. • Compliance with parenting time. It is difficult to predict whether mothers (who might otherwise be sole custodial parents) would be more likely to comply with parenting time after an award of joint physical custody. One theory holds that with shared physical custody, power differentials are equalized and that non-compliance may decrease. • Psychological status of the parents if one is considered to be a “visitor.” Creation of a presumption of joint physical custody could have a positive psychological impact on fathers in that it might encourage them to stay involved with their children and to pay child support. Adoption of a presumption of joint physical custody would impact fathers who are or would otherwise be sole physical custodians in the same way it would impact similarly situated mothers.
Like Mitnick though, Froehle misses the point of a joint physical custody presumption. That is, unless shown otherwise through the normal course of custody proceedings, both parents are entitled to maintain custody of their children that they possess by virtue of being the natural parents of a child. Although these points may be relevant to actual custody decisions I do not believe they are relevant to a due process presumption.
Impact of Joint Physical Custody Presumption on Primary Caregivers
Loretta Frederick discussed the historical trend away from use of presumptions and toward individualized child custody decision making. Fredrick admits that joint physical custody works in limited circumstances where the parties are committed to it and the logistics are workable but counters that by saying research shows that when parents have the option, eighty percent do not choose joint physical custody.
Fredrick cites that 30 years ago California adopted a joint physical custody presumption but changed to a system of awarding joint physical custody in cases of agreement. California judges cited lack of parental cooperation, continuing parental conflict, instability, and logistical difficulties as major problems. Frederick claims that research also indicates that joint physical custody arrangements are not stable and they increase litigation. Frederick, in an attempt to dissuade a presumption, then went on to talk about the scope of actual joint physical custody arrangements that are not relevant to a presumption. Impact of Joint Physical Custody Presumptions in Cases involving Domestic Violence
Loretta Frederick presented information concerning the impact of joint physical custody in cases involving domestic violence. Research shows that contested custody cases frequently involve allegations of domestic violence (50% to 77%). Allegations of Domestic Violence have long been considered a woman's "silver bullet" in gaining child custody. Often times, without any evidence or past history, judges will order a man out of the family home, away from the children and then grant permanent custody without any finding that DV has ever been committed.
Although Frederick felt such cases require a differentiated response including consideration of the severity and frequency of the violence, the pattern of the violence, identification of the primary perpetrator, investigation of parenting capacity, and analysis from the perspective of the child she did not feel that false allegations should be considered a factor. Few people would disagree that protecting children should be the highest priority. In cases involving coercive controlling violence, the abuser often threatens to harm the children in order to control or punish the victim. This behavior continues after separation or divorce.
That is exactly the type of situation I faced. Prior to Elica Talbot abandoning our family she did point a gun at my toddler son and threaten to kill him because "You care more for him that you do me". She also returned to the house armed once again and started making threats. That time I did call the police and she fled as they arrived.
Frederick believes that statutory exceptions to joint legal and physical custody presumptions for cases involving Domestic Violence are ineffective because: (1) victim parents may not understand that the presumption can be rebutted or how to do it; (2) victims fear retaliatory violence for attempting to rebut the presumption; (3) victims may not immediately understand the dynamics of domestic violence and its impact on children; (4) victims may lack evidence of the violence; (5) victims may be unable to afford litigation; (6) victims may be unrepresented; (7) family law professionals frequently fail to identify domestic violence; and (8) there are no proven models for screening and assessing domestic violence in the court context.
Frederick has made it clear that the due process requirements of a presumption of joint physical custody would go against her agenda of depriving children of access to both parents and increasing conflict in their lives.
Impact of Joint Physical Custody Presumption on Non-marital Families and Parents from Diverse Communities and Different Socio-Economic Status
Melissa Froehle also presented information on unmarried families and single-father headed households. Almost 40% of births are non-marital and the increase in non-marital births is largely the result of births to cohabiting couples. Most non-marital children are born to romantically involved parents who desire father involvement. However, cohabiting and visiting relationships tend to disintegrate over time. Yet, in terms of household composition, children born into cohabiting households may not be so dissimilar from children born into married households. Research shows that children born into cohabiting families spend 74% of their childhood years in a two-parent household, as opposed to 88% of children born into married households and 51% born into single-parent households. Rates of cohabitation, as well as non-marital birth, vary significantly by race and ethnicity.
Some barriers to father involvement include poverty, lack of education, and multiple partner fertility. Research shows that low income fathers are initially highly involved with children born outside of marriage but contact with nonresident fathers tends to decline over time. Rates of paternity establishment have soared and 64% of open Minnesota child support cases currently involve children of unmarried parents. Single-father headed households are the fastest growing household type in Minnesota. Social Science and Related Literature
Jeffrey L. Edleson made a presentation to the Study Group entitled “Assessing Social Science Research.” He discussed evidence-based decision making and suggested four questions to consider when evaluating studies. First, identify the purpose and specific aims of the study. Second, ask how the study was conducted, specifically who was studied, how the people were found, what research design was used, and how participants provided information. Third, determine what was found including how data was analyzed, the general findings, and how variation was dealt with. Finally analyze the meaning of the results and the extent to which the data support the conclusions and whether alternative explanations are considered. Dr. Edleson made an important caution in that no one study is definitive and readers should be cautious about causal claims. This is the type of "evidence" that those with anti-family agendas like Frederick and Mitnick make. Throughout their testimony they would site a specific finding from a particular study that is not generally applicable and apply it in a context that was not relevant to the current study. Dr. Edleson further cautioned that only studies based on representative samples with replicated findings can be generalized.
He urged Study Group members not to expect “black letter truth” from social science. Members of the Study Group submitted articles for consideration that were distributed at and between meetings. Those can be found in the Appendix of the Study.
Study Group Discussion of the Impact of a Presumption of Joint Physical Custody
Based on oral and written testimony, social science and related literature, and professional and personal experience, Study Group members identified potential problems and benefits associated with adoption of a joint physical custody presumption. Study Group members did not reach agreement about the list and it is not necessarily comprehensive.
As happens throughout the advocacy world, the discussion was complicated by lack of consensus concerning the meaning and operation of a presumption of joint physical custody. Clearly Frederick sought to confuse the Study Group by presenting her agenda in which she claims that a due process presumption would harm children by requiring judges to force children to live with parents who have abused them. However, there is no language in any custody presumption bill that would require this.
Here is what the Study Group found to be benefits and concerns: Potential Benefits of Adopting a Presumption of Joint Physical Custody • A joint physical custody presumption would encourage children’s ongoing relationships with both parents, particularly fathers. • A joint physical custody presumption would decrease perceived court system bias against fathers. • A joint physical custody presumption would limit court discretion. • A joint physical custody presumption might enhance predictability. • A joint physical custody presumption might decrease perceived variability of outcomes from different jurisdictions. • A joint physical custody presumption would change the “starting point” for negotiations between parents because the burden of proof would shift to a parent seeking sole physical custody. • A joint physical custody presumption might decrease litigation. • A joint physical custody presumption might decrease parental conflict by equalizing power between parents. • A joint physical custody presumption might enhance children’s relationships with extended family members. • A joint physical custody presumption might encourage development of a familial relationship when unmarried parents have not had a prior relationship. • A joint physical custody presumption might increase efficiency and reduce some costs. • A joint physical custody presumption might enhance parents’ rights. Concerns about the Impact of a Joint Physical Custody Presumption • A joint physical custody presumption would limit the ability of the court to consider the needs of individual children. • Joint physical custody would be detrimental for children continuously exposed to high levels of parental conflict. • Joint physical custody might heighten conflict between parents who, for a variety of reasons, are unable to effectively co-parent. • A joint physical custody presumption would be dangerous for children and victims of domestic violence (battering) because even if exception is made for such cases, courts do not currently have the resources or ability to consistently identify battering or reliably assess risk. • A joint physical custody presumption would create financial and procedural challenges for low income and unrepresented parents who would be required to carry the burden of proof if they, for any reason, object to joint physical custody. • Joint physical custody would be impractical for some families such as those where parents live in geographically distant locations, children are very young, and/or parents are not married and have never had an ongoing relationship with each other. • A joint physical custody presumption might primarily apply to the minority of parents who are unable to agree on parenting arrangements. • A joint physical custody presumption might increase litigation. • A joint physical custody presumption might create discontinuities and conflicts with other statutes and programs (private health insurance eligibility, child support “obligor,” Earned Income Tax Credit eligibility, MFIP eligibility, Head Start eligibility, etc.). • A joint physical custody presumption might result in system-wide confusion stemming from disagreement over the definition and operation of a joint physical custody presumption. • A joint physical custody presumption may not be an appropriately tailored solution for current problems --lack of Minnesota data makes it difficult to assess issues and generate helpful responses.
Be sure to check back for the next installment, Minnesota Shared Parenting Report - Part VI Fiscal Impact of Adopting a Joint Physical Child Custody Presumption
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Other Jurisdictions and Potential Positive and Negative Impacts
Legislators rarely do anything without seeing what others have done before them and what people think about it. Testing the waters as it is called. So it is no surprise that the Study Group would have to research what the results of presumptive joint custody in other jurisdictions was.
Jodie Metcalf, J.D., Manager, Child Support Magistrate Program reported to the Study Group concerning joint custody statutes in other jurisdictions. This Study Group was to focus and report on presumptions of joint physical custody which made studying other jurisdictions somewhat difficult as most presumptions are of joint legal custody.
The research is also complicated by the fact that jurisdictions use different terms for the concepts of joint legal and physical custody and they use graduated approaches. For example it is possible for a statute such as Indiana's to declare that there is no presumption either for or against joint physical custody. This one is about useless though because judges just require that fathers prove they are fit while no burden is placed on the mother. Unless specific findings and conclusions are requested then the judges are free to make a general determination without any showing as to why. Only where statutes provide for a rebuttable presumption or where both parents agree to it can joint physical custody data be comparable.
There is only one state that appears to have a presumption of joint physical custody. Idaho statutes contain a presumption that joint custody is in the best interests of children “absent a preponderance of evidence to the contrary” and except in cases involving domestic violence. However, physical custody is to be shared by parents “in such a way to assure the child frequent and continuing contact with both parents but does not necessarily mean the child's time with each parent should be exactly the same in length nor does it necessarily mean the child should be alternating back and forth over certain periods of time between each parent.” So even with that physical custody is not necessarily near 50/50 and may not provide accurate data for an equal Shared Parenting analysis. Approximately nine states have adopted presumptions of joint physical custody that apply only in cases where the parents have agreed to such an arrangement.
So what remains is that this presumption has not been adequately vetted to determine if it is in the children's best interest. What is left then is to study cases where joint custody has been ordered. All other bases for examination are really nothing more than speculation.
Be sure to check back for the next installment, Minnesota Shared Parenting Report - Part V Study Group Discussion of the Impact of a Presumption of Joint Physical Custody
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
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
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
As a child custody policy advisor I have written and had child custody related legislation passed into law. My counseling of lawyers and appearances as an expert witness have helped them achieve more favorable results for their clients including winning appeals, gaining parenting time, reducing conflict, and mediating agreements. Additionally I made important contributions to the amended Indiana Parenting Time Guidelines that went into effect March 2013 and am currently formulating recommendations for the Indiana Child Support Guidelines which are to be amended this year. For parents I offer child custody based life coaching to help them maintain control of their lives and increase their fitness as parents so they can truly serve the best interest of their children.
