A bill pending in committee could dramatically change the way custody and parenting time is allocated when parents live separately.
The bill, HF 1666, would establish a rebuttable presumption that a court shall award 50 percent of the parenting time for the child to each parent. If a 50-50 split is not practicable, the court shall maximize parenting time for each parent as close to 50 percent as possible.
The solons are on deadline. March 15 is the deadline for the bill to pass out of the House committee. March 29 is the deadline for a companion bill, SF 1295, to pass out of the Senate Judiciary and Public Safety Finance and Policy Committee, where it now sits.
Minnesota Statute 518.175, subdivision 1, now says that the court shall grant such parenting time in the best interests of the child, with a rebuttable presumption that a parent is entitled to 25 percent of parenting time.
Child’s age not a factor
The bill lists extensive factors for the court to consider but it does not explicitly state that the standard is the best interests of the child, except to presume that it is in a child’s best interest to maximize time with each parent.
The bill would delete an existing provision in subdivision 1 that “[t]he court shall consider the age of the child and the child’s relationship with the parent prior to the commencement of the proceeding.” Instead, the court would be precluded from limiting parenting time based on the child’s age.
In limited circumstances, the court may order a gradual increase in parenting time but it must get the parent up to 50 percent within six months. This rule would apply when “the child does not have a relationship with a parent due to a long willful absence with minimal or no contact with the child,” or if the child is 1 year old or younger.
If a child is 5 years old or younger and the order does not provide for equal parenting time, the order must include a provision for possible future modification.
The presumption may only be rebutted with clear and convincing evidence of a parents’ diagnosed and untreated mental health or substance-abuse issues; domestic abuse between the parents or a parent and child; a parent’s inability to modify his or her work schedule and verifiable scheduling conflicts; repeated, willful failure for a parent to care for a child during parenting time awarded by court order; the distances between the parents’ residences is too great; and that the child has a diagnosed medical or educational need that cannot be accommodated under a 50 percent schedule.
Twenty-five percent, or less, parenting time is not necessarily enough parenting time, said bill author Rep. Peggy Scott, R-Andover. She told the Judiciary Finance and Civil Law Division Committee at a March 5 hearing that children may have many adverse consequences from divorce, as do parents. “The entire family is affected,” she said.
She also told the committee, “This bill is not a mandate for all candidates. It is to protect the children who have fit parents who are able and willing to step up to the plate.”
Several parents, mothers and fathers, shared personal experiences of devastating parenting time outcomes at the House committee meeting. Divorced mother Sarah Lyon asked the committee to protect the father-child relationship as well as the mother-child relationship.
Activist Molly Olson, founder of the nonprofit Center for Parental Responsibility in Roseville, told the committee that the equal parenting time bill “is a beautiful thing” that bridges the partisan divide. She said that the bill respects children’s preferences and puts their interests first.
She further told the committee that the “divorce lawyer industry” has consistently opposed changes to custody laws for decades and that the present bill is needed to protect the public.
Equal ownership or equal footing?
The motivation behind HF 1666’s presumption may be that children are entitled to spend equal time with each parent, but that doesn’t address circumstances where that’s not in the best interests of the children, said Samantha Gemberling, legislative co-chair of the Minnesota Chapter of the American Academy of Matrimonial Lawyers.
The child’s need for consistency and stability has always been a focus in family court, Gemberling said. A 50-50 parenting time split would mean frequent changes of residence for the child. “Some kids can’t manage that much transition,” she said.
Furthermore, the bill seems to codify the parents’ “equal ownership” of the children, she said. Parents’ needs be on “equal footing” but that puts the focus on the adults, not the children, she continued. And equal footing frequently has not been the experience of the child.
Parents actually on an equal footing can agree to a 50-50 split and make it work. “They don’t need a presumption, they know it’s better for kids,” Gemberling said.
She pointed out several other concerns. The bill requires that mental illness or substance abuse issues be diagnosed before they can be considered. Some parents may have difficulties that don’t rise to the level of a diagnosis and some have no medical care because they have no insurance, she said, and some will refuse to get care. But if the condition is being treated, then it cannot be considered in the parenting plan determinations.
Another provision of the bill provides a path for parents who cannot be available 50 percent of the time. An amendment to the original bill states, “An inability to modify a parent’s schedule includes but it not limited to work, school, child care, or medical appointment-scheduling conflicts that prevent a parent from maintaining parenting time with a child to accommodate the presumption under this section. A parent’s provision for safe alternative care when the parent is not available during the parent’s scheduled parenting time is not an inability of a parent to participate in a parenting time schedule under this paragraph.”
To allow such substitute care flies in the face of the stated purpose of providing equal parenting time, Gemberling said. “If we’re going to increase parenting time, let’s increase parenting time,” she said.