Ashley E. Bloch, Esquire and Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Bloomington, Minnesota, 55431, (952) 224-9977, firstname.lastname@example.org, http://www.mndivorcefamilylaw.com.
Changes are coming to Minnesota child custody law. How, if at all, will they affect your family’s custody arrangements?
Governor Dayton recently signed H.F. 2722 into law. This revision of existing law, which took effect August 1, 2014, makes a number of changes to Minnesota’s child custody law. Let’s take a look at the most significant changes, and the impact they’re likely to have on Minnesotans’ custody cases:
No presumption for or against joint physical custody, except in cases of domestic abuse.
This provision of H.F. 2722 makes the lack of a presumption in favor of joint or sole physical custody explicit. In practice, this may not change things for many Minnesota families. The effect of the law is to clarify that sole physical custody and joint physical custody are equally valid options for the court’s consideration. While there is some older Minnesota case law suggesting that awards of joint physical custody are not favored, the clear language of the revised law should take precedence.
No one joint custody factor shall be considered to the exclusion of the others.
Minnesota law provides for a number of factors to be considered by the court in determining whether to award joint legal or physical custody. The revised law clarifies that no one factor should be given such weight that the other factors are excluded from evaluation; all relevant joint custody factors must be considered.
Disagreement between parents about custody does not equal “inability to cooperate.”
One of the factors courts must consider when deciding custody arrangements is “the ability of parents to cooperate in the rearing of their children.” The revised law makes clear that a disagreement between the parents on whether there should be joint or sole physical custody does not constitute an “inability to cooperate” that suggests joint custody would be inappropriate. This is a common-sense change; many parents may disagree about the ideal custody arrangement, but are able to work together for their children’s benefit in the context of whatever custody order the court makes.
If the parents disagree, the court must make detailed factual findings regarding the custody factors.
The few words added to the law with regard to factual findings are a sensible practical change. If parents disagree as to whether joint or sole physical or legal custody should be awarded, the court must make detailed factual findings with regard to each of the custody factors, and explain how those findings led to the court’s determination of which arrangement would be in the children’s best interests. This forces the court to articulate its thought process, and provides greater clarity for everyone.
The court may reserve determination about establishment or expansion of future parenting time.
This is a bit of a double-edged sword. On the one hand, it allows for flexibility as family situations change, such as when evolving parenting time arrangements are appropriate as very young children grow. Similarly, if a parent is struggling with issues, such as substance abuse, this change allows for ease of increasing parenting time as the parent brings his or her issues under control.
On the other hand, this reservation of power on the part of the courts creates an atmosphere of uncertainty for both children and parents. Prior to the revision of the law, a significant change in circumstances was necessary before courts could order a substantial change in parenting time. The revised law suggests that the court now retains the power to make such a change based on “the best interests of the child,” absent any change in circumstances.
Increasing one parent’s parenting time may not equal a restriction of the other parent’s parenting time.
Language added to the law by H.F. 2722 states: “A modification of parenting time which increases a parent’s percentage of parenting time to an amount that is between 45.1 to 54.9 percent parenting time is not a restriction of the other parent’s parenting time.” “Restriction” has a particular meaning under Minnesota law.
In Minnesota, the court must hold an evidentiary hearing before “restricting” parenting time. This hearing is to determine whether “parenting time with a parent is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.” If the court finds that to be the case, it “shall restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant.”
Because the revised law specifies that an increase of parenting time to the level indicated is not a restriction of the other parent’s parenting time, no evidentiary hearing is required. Theoretically, then, a parent who currently has 15% parenting time could receive an increase to 50% simply by filing a motion (or repeated motions) with the court – a pretty significant change from prior understanding.
In general, the revisions to Minnesota custody law taking effect are helpful, but may not be ideal, depending on your position. Custody matters remain fraught with conflict, and having the counsel of an experienced family law attorney is always a good idea. If you have concerns about what changes in Minnesota’s custody law means for you, we invite you to contact our Bloomington, MN attorneys at (952) 224-9977 to schedule a consultation.