Rights, responsibilities of divorcing parents are being vigorously debated by legislators this session
Rep. Torrey Westrom began Tuesday’s meeting of the House Civil Law Committee with an unusual admonition. He asked audience members to refrain from booing, clapping or sighing during testimony. Westrom also noted that security officers would be stopping by to monitor the hearing room in the State Office Building.
“We know this is a very concerning issue to many people,” said Westrom, R-Elbow Lake. “Emotions can run high … We want to keep order in this room tonight. We want everybody to be respected and to be heard.”
The topic eliciting so much emotion was a bill establishing joint physical custody as the presumptive outcome in child custody disputes. While that might sound like a legalistic discussion, battles over custody of children – whether in a courtroom or at the Legislature – are notoriously acrimonious. Advocates wearing stickers that read “JPC Now!!!” filled the hearing room. Supporters of the legislation filled their allotted 90-minute testimony period.
Kathy Kleve told legislators that her husband has been battling the family court system for more than a decade to have equal access to his twin sons from a previous marriage. Currently, she said, he has not seen his children in 16 months. “My husband has run out of options,” Kleve, a Maplewood resident, told the committee. “If the courts won’t do their job, who will? He lives with the fear every day that he will never see his boys again.”
Todd Harris, a Maple Grove resident, testified that his relationship with his 18-year-old son suffers because he has been denied equal parenting rights. “I am angry, disgusted, embarrassed, humiliated and bitter at how our court system is run,” he said. “In the courts, fathers are guilty until proven innocent.”
Debates over child custody rules are nothing new at the Legislature. Much of the discussion is rooted in a belief among some advocates that men repeatedly receive unfair treatment in custody cases. In 2006, legislation was passed changing the presumptive custody portion to a minimum of 25 percent. Last year Rep. Tim Mahoney, DFL-St. Paul, introduced legislation that would have set joint physical custody as the presumptive standard, with each parent permitted at least 40 percent guardianship. But the bill never made it out of committee.
The latest version of joint physical custody legislation, introduced by Rep. Peggy Scott, R-Andover, would require that parents share time with their children equally, with each receiving guardianship rights at least 45 percent of the time. This presumption could only be ignored by the courts if there is “clear and convincing evidence” that a child would be in imminent harm if placed in a parent’s care.
“I’m a firm believer, and the studies show, that kids need the active involvement of both parents in their lives,” Scott said. “That’s not happening in the state of Minnesota.”
Mahoney is one of 12 co-authors on the bill. He believes that changes are needed to make custody disputes less acrimonious. The combatants in these fights “could be the nicest people in the world on a regular basis, but at the time of a divorce they get irrational,” Mahoney said. “We shouldn’t be fighting that battle with kids. Kids should have time with their father and time with their mother.”
Most observers believe that legislation to change child custody rules is likely to get a more sympathetic vetting with Republicans in control of the House and Senate. Scott’s bill is not the only proposal in this area that has been introduced. Rep. Steve Drazkowski, R-Mazeppa, has authored a similar bill that would establish joint custody as the de facto standard. It has yet to get a hearing.
In addition, Rep. Diane Anderson, R-Eagan, has introduced legislation mandating that parties in custody cases agree to a “parenting plan”laying out the terms under which each parent would have access to his or her offspring. If the parties cannot come to an agreement on a plan, then a judge would intervene and draft such a document. The bill passed out of the Civil Law Committee earlier this week.
But advocates for victims of domestic violence are strongly opposed to Scott’s proposal. “We absolutely reject the bill in its entirety,” said Liz Richards, director of programming at the Minnesota Coalition for Battered Women. “There’s layer upon layer of problems with the bill.”
Specifically, she believes that the legislation will endanger children by placing them in homes where parents have a history of physical violence, mental illness or substance abuse problems. Richards points to one passage of the bill as particularly troubling: “In no instance may the court limit parent and child contact absent compelling necessity to prevent substantial and imminent harm to the child,” it reads.
“That’s a pretty wild standard,” Richards said. “I’m going to have to produce evidence that right now my child is [facing] imminent harm.”
Advocates for victims of domestic violence point to the murder of Mikayla Olson in 2004 in St. Paul as evidence that the court system already lacks adequate safeguards against violent parents. Mikayla’s father, John Olson, was given joint legal custody of his daughter despite repeated threats to kill her and his wife. Two years after their divorce was finalized, he murdered Mikayla during his parenting time. Richards said: “I don’t think that we lightly sound the horn… that people may end up dead because of this, but it is a real concern.”
Richards is also opposed to the parenting plan legislation, but for a very different reason. She argues that such documents are complicated (often running 40 pages or more) and points out that roughly 70 percent of individuals going through a divorce in Hennepin County do not hire lawyers.
Richards also says the courts cannot afford it. “We’re going to be taking our limited court resources and have somebody in the court system doing these parenting plans?” she asks. “This is not a useful way to use limited court resources.”
Tuesday’s hearing on Scott’s legislation was merely informational. Westrom indicated that he expects to take a vote on the bill on Monday. (So far, there is no companion measure in the Senate.)
But Scott is optimistic that the bill will advance. She says she hears constantly about the issue from her colleagues on both sides of the aisle.
“I haven’t talked to a single one of them that hasn’t had a story from at least one constituent,” she said. “There’s much more of a climate for it now.”