All in the Family: Renewed emphasis on abuse in custody cases

Listen to this article

On August 17, 2020, the Minnesota Court of Appeals issued a reversal in a high-conflict custody case. Is the label pendulum shifting the other way?

In re the Paternity of BLT, Mother and Father were the parents of a daughter born in October 2015. In 2017, during a verbal dispute, Father retrieved a handgun and brought to the room where Mother was with Daughter.

The parties separated in early 2018. Their relationship was generally acrimonious. They tried an equal access schedule without success. Mother then limited Father’s parenting time to alternate weekends.

In June 2018 Mother brought an action to establish custody and parenting time. The District Court’s first temporary order set joint legal and physical custody with an equal “2-2-3” schedule.

Mother subsequently obtained a job that required her to drop Daughter off at day care at specific times in the morning and evening. Husband refused to use or pay for day care. The District Court issued a second temporary order requiring exchanges to take place at day care.

After a May 2019 trial, the District Court issued a parenting time schedule that required Daughter to spend five of 14 overnights in the care of Father — including every Friday overnight.

The District Court found that domestic abuse had occurred, but did not address the statutory presumption against joint custody or suggest it had been rebutted. No best interest factor favored Father. Still, the District Court awarded the parties joint legal and physical custody.

Mother appealed, arguing abuse of discretion on the part of the District Court.

Parenting time

Mother argued that the District Court inappropriately limited her weekend time. However, Judge Connelly opined that the District Court did not abuse its discretion because Mother “has almost two-thirds (64%) of the total time.”

The District Court permitted Mother to have some full weekends if the parties agreed. Mother argued that she was forced to “negotiate with her abuser.” Judge Connelly suggested that the parties can make weekend arrangements in writing, keeping correspondence “courteous and businesslike.”

Mother argued that the District Court’s schedule compelled her to see Father once every two weeks for Saturday exchanges. However, Judge Connelly noted that the District Court’s Order permitted either parent to “designate a trusted adult to facilitate a parenting time exchange.”

Finally, Mother argued that the District Court’s schedule precluded her from taking Daughter on a seven-day vacation. Judge Connelly reiterated that the District Court’s Order suggests that “vacation time take priority over the regular parenting time schedule.

In short, the Court of Appeals found no abuse of discretion. Judge Connelly went out of his way to suggest that the District Court tried to craft a schedule that accommodates both parents’ work schedules and daycare limits.

Custody presumptions

Judge Connelly addressed Mother’s argument concerning custody presumptions by reiterating that “the court shall use a rebuttable presumption that joint legal and physical custody is not in the best interests of the child if domestic abuse [as defined by law] has occurred between the parents.”

The District Court found that an act of domestic abuse occurred in the parties’ relationship when Father retrieved a handgun, during an argument, and returned it to an area of the home where Mother and Daughter were present.

Still, Judge Connelly pointed out that the District Court “awarded joint legal and physical custody without addressing whether the statutory presumption created against joint custody by domestic abuse had been rebutted.”

Absent any explanation of why the presumption had been rebutted, “neither the parties nor a reviewing court has any basis for assuming that it was rebutted.”

Custody labels

The Court of Appeals next determined that “[e]ven if the presumption had been rebutted, the District Court’s findings do not support an award of joint legal and joint physical custody.” Judge Connelly suggested that the findings of the District Court were not supported by the evidence.

As to factor one (needs of child), the District Court found that Father struggled to meet Daughter’s physical needs and provide adequate safety for a toddler. It also found Father failed to respond to the child’s illnesses, store his firearms safely, or ensure Daughter was adequately secured in her car seat.

As to factor two (special needs of child), the District Court determined that Father was essentially unaware of Daughter’s lactose intolerance and refused to keep an adequate food diary.

As to factor five (substance use), the District Court expressed “serious concerns” about Father’s marijuana use while caring for Daughter.

As to factor six (routine care), the District Court said that while Father “sometimes” provided day-to-day care for Daughter, he has shown “poor judgment when [Daughter] is sick.”

As to factor 12 (ability to cooperate), the District Court held that Father has “failed to cooperate in rearing the child” and “failed to consistently abide” by the orders of the court.

All said, the District Court determined that seven factors favored Mother, three were neutral and two did not apply. No factor favored Father. Still, the District Court awarded joint legal and physical custody to the parties.

The District Court justified its decision by suggesting that “[n]either of these parents is incapable of working jointly to raise their child … [d]ecisions going forward must be child-focused, forcing both parents to set their animosity for each other aside.”

In reversing, Judge Connelly opined that “an award of joint custody must be based not only on the parties’ theoretical ability to cooperate but on their actual willingness to do so.” He further noted that “[j]oint custody should not be used to coerce cooperation from parents who have been unable to cooperate or amicably settle disputes about their children.”

Shift in thinking

Over the past several years (in particular following the “new” best interest factors that came into effect in 2015) it seems there is an unwritten presumption in favor of joint physical and legal custody.

The BLT decision suggests a shift the other direction, with renewed focus on acts of domestic abuse and the ability of parents to cooperate in the rearing of their children.

It has been our recent experience that many, if not most, uncooperative parents still receive a recommendation of joint physical and legal custody. A pattern has evolved, whether through early neutral evaluation, custody evaluations, or a trial.

“Wishful thinking” seems to be the norm. The trouble is that the abusive and controlling behavior often continues after the curtain drops.

Jason Brown and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm.