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Both sides in a debate over whether to change Minnesota’s rules on child custody for divorcing parents say they want what is in the best interest of the children. Can they both be right?

2012 Session: Child custody fight headed to St. Paul

Peggy Scott

Both sides in a debate over whether to change Minnesota’s rules on child custody for divorcing parents say they want what is in the best interest of the children. Can they both be right?

The Children’s Equal and Shared Parenting Act, or House File 322, would require that in almost all divorce cases with minor children, each parent would be awarded at least 45.1 percent of parenting time — establishing joint physical custody.

The only exceptions would be in cases of domestic abuse or if one parent was causing substantial harm to the child. Joint physical custody is defined as both parents sharing in the routine daily care, control and residence of a child.

Under current law, if the two divorcing parents cannot agree on a parenting plan a judge decides for them. House File 322 would make the presumptive arrangement joint physical custody to be split between the two parents if no agreement is reached. Only about 5 percent of all divorce filings, including custody disputes, wind up being decided by a judge.

The bill has been debated for many legislative sessions but broke through last year. It passed a hearing in the House Civil Law Committee in April and is poised for additional hearings this session in the House Judiciary and Policy Committee and the Senate Judiciary Committee. The bill’s chief House author said she has the votes to pass the bill in the chamber and is optimistic for similar bipartisan support in the Senate.

The family law section of the Minnesota State Bar Association testified against the proposal last legislative session and is prepared to fight it this year, too.

Rep. Peggy Scott, R-Andover, said the proposal is an equal rights issue for fathers who face an uphill battle in custody proceedings. Even in a divorce, Scott said, children benefit from having both parents in their lives and her bill would take away the debate of parenting time and force parents to focus on their children’s best interests after ending their relationship.

“This bill is really a common sense idea,” Scott said. “Why in our day and age when fathers and mothers both work and share equally in the responsibility of raising children, why should that change just because of a divorce?”

Scott said she saw firsthand how destructive a divorce can be on parents and children when she watched one unfold in her own family.

“I saw it took a lot of money and put a lot mental strain on that family,” she said. “The kids ended up being divided; it was an atrocious mess and tore that family apart. It was much worse than it needed to be.”

Family law attorney Pamela Waggoner is also a member of the MSBA’s family law section. She said the discretion to decide child custody correctly resides with the court when the two parents cannot agree. Under current state statute there are more than a dozen factors to be considered to settle a custody dispute. She said Scott’s proposal focuses on the wrong factor: what the parents want.

“It is important in family law to stop this quantitative analysis and look at quality time and focus on what the child wants,” she said. “Is it good time for a kid to spend an hour driving back and forth between mom and dad when they have a test tomorrow at school that they are worried about? What about a child’s right to have an upbringing free of animosity and anger from the two most important people in their lives?”

Molly Olson has been working for 13 years to get the bill to this point and is hoping she will see it become law. She founded the Minnesota-based Center for Parental Responsibility to organize support for the proposal and serves as its chief lobbyist. She said the bill has gotten this far because changes were made to the language based on conversations she had with both supporters and opponents.”

“We have always been extremely open to what everyone has to say; we want the best bill possible for the children of Minnesota,” she said.

She said the law is gender-neutral and starts both divorcing parents from an equal position.

“The current system we have is far outdated,” she said. “”Forty-five years ago women did not work, and it was not the father’s duty to be a parent. Well, we live in a different culture now. We have had a one-size-fits-all model where one parent is the winner and one is the loser [in a divorce.] This bill puts both parents on an equal playing field.”

Family law attorney Michael Dittberner is also a fellow in the Minnesota Chapter of the American Academy of Matrimonial Lawyers. He said the bill amounts to a mandate for joint physical custody that can only be overcome by child abuse or neglect from one parent. He said the cookie-cutter approach to custody is too simplistic in many divorces.

“Not every family is an equal parenting time arrangement the most optimum solution,” he said. “There are sometimes families in which one parent has a greater role in parenting than the other parent, that is the bottom line, and if you create a presumption that both parents should get equal parenting time, you are focusing not on the children but instead on the parent’s wishes. With this bill the parent who wants 50:50 custody is given a higher priority than what is best for the child.”

Olson countered that joint physical custody is in the best interest of children.

“The research says that kids need both parents equally. Kids are more successful with both parents in their lives,” she said. “But in the current system there is such a bias against fathers in family court. I tell people that a drug-addicted prostitute mother guilty of neglect has a better chance of getting her kids than a father who doesn’t even have a speeding ticket.”

Dittberner said he sees no need to radically change the family law statutes and said the bill, if passed, would encourage more litigation and lengthy custody battles as parents fight to contest the presumption of joint physical custody.

“If the presumption [of joint physical custody] can only be overcome by showing evidence of child endangerment or domestic abuse, my concern is if that’s the standard we will use to judge, then I would imagine there will be a subspecialty of family law litigation created by people trying to prevent a 50:50 parenting time being imposed. Parents will do whatever they can if they think 50:50 time is not right.”

Scott said she expects her bill will get a hearing in the House Judiciary Policy and Finance and Public Safety and Crime Prevention Policy and Finance committees. Olson said the bill is also on the list to be heard in the Senate Judiciary and Public Safety Committee as well.

14 comments

  1. Thanks to Molly Olson and others for their work on this bill. Shifting the presumptions for custody to a more equitable arrangement is another shining example of how Minnesota is at the forefront of family law reform. By shifting the presumption toward equal parenting time/joint physical custody, the burdens of support will generally shift to a more equitable arrangements, decreasing some of the institutional incentives for divorce and stabilizing marriages (See Family Law Quarterly Summer 2011). I respectfully disagree that this change will cause more litigation and lengthy custody battles. Those predisposed to litigate over custody will do so regardless of the arrangement.

  2. Here in Illinois, we are wishing Minnestota godspeed in getting this bill passed. As a state that is nearly wedded to “every other weekend” visitation, we have a 30- to 50-percent disengagement rate between non-resident parents and their children during their critical years. Any presumption toward shared parenting would reduce this catastrophic dynamic, as well as reducing conflict over the children at the time of divorce, according to the Children’s Rights Council of Illinois. Your bill will accomplish that much for children!

  3. Nothing like a superficial solution to the complex problem of custody based on an anecdotal family problem in Ms. Scott’s family. Ms. Scott joins a long line of legislator’s who continue to refuse to look deeply at critical social issues and the peer reviewed research that supports the need to evaluate the entire environment of a child in order to best serve the custodial needs of that child. Minnesota family law judges are far better suited to evaluate the needs of the children before them than some legislator ‘s simplistic prescription of shared physical custody based on her personal family’s problem.

  4. The fight for Joint Custody is happening in many states and around the world. We are fighting for something similar in Massachusetts and Israel Just passed a joint custody bill for the tender years. Keep up the good work Minnesota and please SIGN my petition to help our nations kids.

    http://www.change.org/petitions/federal-and-state-laws-to-bring-back-dads-into-kids-lives-reform-federal-state-laws-to-bring-back-dads

  5. The current system allows one selfish parent to veto the right for children to have a full and meaningful relationship with both parents.

  6. “Anyone who sees a father’s positive role in a child’s life as a threat, certainly has a agenda and children are not on it!  MN HF 322 addresses nothing less than the facts of anything other than the need for children having equal access to both fit parents!” Those who argue against this simple yet naturally instilled need that all children have for a balance in their life development. They do for the gain of their own “Personal Profit & Power” in the area of the “Family Law System / Divorce Industry!”

    Those who argue against it throw out what is said to be facts & figures based on certain studies cited. They talk so fast and offer nothing tangible in print for the audience to follow along with or as a take away for further studying. This done purposefully in effort to cause people to just believe what they say as the truth. On the flip side, what you see with people like Ms. Olson of CPR & MN Rep. Peggy Scott while making their arguments for it. They put all the details & resources that back up what they say and cite as facts into the peoples hands in a printed form!

    What you are seeing here with this full court press being today. It’s being done by a generation of folks tired of watching or their own personal experience of the social engineering that is being imposed by a group of people like the MNBA for their own gain of “Personal Profit & Power”! I grew up in a divorce family. People like myself, Molly Olson and Peggy Scott have no interest in seeing this chaos being handed off to another generation. We do this because it is the right thing to do and because it is the God given right for all children to experience both of their fit parents!!

    Children gravitate towards the truth! I would like to encourage Mr. Dittberner to take a moment and read the story offered by Emily Heist in her article on “Why I am thankful for joint Custody” (http://goodmenproject.com/families/why-im-grateful-for-joint-custody/).

    Les Jobst
    Andover, MN
    763.300.9766

  7. Under our current statutory presumptions, if one parent says “we can cooperate” & the other says “we can’t cooperate” then there will be no joint physical custody. This changes that, so the parent who tries to play up the lack of cooperation will not be rewarded. A good parent ready to meet at the 50 yard line shouldn’t be forced to go for full custody, because currently it’s such an uphill battle to seek joint physical custody as a primary goal.
    Reversing the presumption would reduce custody litigation. I still think that with this law, 70% of separating/divorcing couples will gravitate toward a traditional custodial/non-custodial situation on their own, and there’s nothing wrong with that.

  8. Chris, MA PhD ABD

    With one legislative Act we have the historic opportunity to leverage the scientific knowledge gained from 2 decades of the “best interest” social experiment to set stage in Minnesota for A) Lowering crime B) Improving educational outcomes C) Decreasing divorce conflict D) Protecting the constitutional rights of all parties in divorce and E) Yes! Ultimately protect and save lives.

    Way too often a blind eye is turned towards tortuous and criminal behavior (abuse of process, defamation, perjury, intentional infliction of emotional distress, etc) too often used or encouraged by family law attorneys in the divorce process here in Minnesota.

    If one party is allowed to exploit the process- as we have today- then none of the parties’ best interests are truly served and what we grow is the fruit of the poison tree.

  9. Inequality creates conflict. Lawyers know this and reap billions in profits from inequality. Of course lawyers are the biggest opponents to equal parenting. Whatever lawyers prefer is the money making way. This isn’t about mothers or fathers rights at all. Children need parents equally. Government statistics prove it for decades. Search the web for ‘fatherless statistics’ to see the tragedy of sole custody on children’s mental beings. Judges say they are unprejudiced and unbiased if they order sole custody to ‘several’ men (whose ex-wives are drug or alcohol addicts).

  10. Listen to the lawyers and judges! Whatever method they support the most is the method that creates the most conflict and most money for court workers.

  11. Parental alienation is the biggest paycheck for court workers. The court will enflame and lengthen the conflict, especially if one or both parents have a lot of money to take. Fact is that the majority of divorced mothers have a boy (who they don’t want to grow up with male behavior, like the father). Fact is that most gay men didn’t have a normal relationship with their fathers, and the majority of gay men came from sole custody. I believe that one can’t disprove that the majority of parental alienation (that the court supports) is in mid or upper income families.

  12. inthemiddleofitall

    I hope this does NOT pass. Has anyone EVER asked a child what they want or like? What is best for the child cannot be determined from the parent — a judge — or Peggy Scott. When a 50/50 arrangement is made and someone asks that child where they live — how do they respond? They do not have a home. They do not have a home base. They are split down the middle like a sandwich. If parents truly care about their children, they will come up with a parenting plan that will give their children quality time with each parent, but will also give the children a sense of belonging as well. THAT is putting the children first and doing what is best for them.

  13. im doing some research for my ex to see if he is capible of getting his 9month old son back from his ex girlfriend he has domestic abuse and traffic violation on his records and he put a order of protection against her and the judge turned it down. so far his ex has been out partying alot and drinking more n she wont give his son back what can he do to get him??? hope to hear from you!

  14. My website was deleated. It is http://custodyequality.blogspot.com/

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