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.