Amid evolving concepts of family and parenting Minnesota’s legislature has enacted amendments to child custody and parenting time statutes that took effect August 1, 2014. While these appear agnostic as regards whether joint physical custody and equal parenting time are presumed preferable, statutory neutrality on the subject may lead courts that have favored sole custody to be more receptive to alternative arrangements.
The past 50 years have witnessed dramatic changes in family life as assumptions about male and female roles within the family have given way to more flexible and less gendered ideas of marriage and parenting. Just in the past 25 years, the number of fathers staying at home with children has doubled,1 while women are now the primary breadwinners in 40 percent of households with children under the age of 18.2 At the same time, the legalization of same-sex marriage in 19 states and the District of Columbia continues to call into question more gendered understandings of parenting roles.
As our assumptions about gender and parenting have shifted, lawmakers across the country have continued to grapple with how to bring child custody laws into alignment with this “new normal.” Minnesota, no less than other states, has found itself engaged in a continued dialogue over questions of joint physical custody and presumptive equal parenting time, as we attempt to reinterpret our custody and parenting time laws in light of evolving assumptions about appropriate parenting roles.
On May 5, 2014, Governor Mark Dayton signed House File 2722, now Minnesota Session Law 197, marking the most recent chapter in this dialogue. While the amendments to Minnesota’s custody and parenting time statutes move Minnesota in the direction of more joint custody and shared parenting arrangements, the bill is also very much a compromise measure likely to leave many practitioners scratching their heads. As lawyers and judges try to understand the implications of the new law, we can also expect a new round of appellate litigation that seeks to decipher exactly what these compromises mean for Minnesota families.
A National Movement
Minnesota is hardly the first state to amend its custody laws to reflect increasing acceptance of shared parenting arrangements. Across the country, a number of states have revised their statutes to favor (or at least not disfavor) shared and equal parenting arrangements. Arizona, for example, amended its child custody laws in 2012 to prohibit gender-based preferences and specifically encourage shared parenting arrangements.3 A year later, Arkansas amended its child custody laws to state that “an award of joint custody is favored in Arkansas,” where “joint custody” means “the approximate and reasonably equal division of time with the child by both parents.”4 And just this year, South Dakota passed legislation requiring that courts at least “consider” an award of joint physical custody, though without imposing requirements for substantially equal parenting time.5 Although they stopped short of amending their laws, both Maryland and Connecticut created commissions/task forces to investigate shared parenting legislation.6
Not every state has been quick to amend its custody laws, let alone mandate equal time between parents. An Illinois bill creating a presumption of at least 35 percent parenting time for each parent stalled in committee earlier this year,7while a 2013 Michigan bill mandating shared parenting similarly did not make it past the judiciary committee.8 Also in 2013, the Florida legislature went so far as to pass a bill creating a rebuttable presumption of equal parenting time, only to see the bill vetoed by Governor Rick Scott.9 A Nebraska bill to create a rebuttable presumption of 45 percent parenting time for each parent was “indefinitely postponed” in April 2014.10
Shared Parenting in Minnesota
Minnesota’s recent efforts towards shared parenting legislation can be traced to 2007 with the introduction of House File 1262. As originally offered, HF 1262 created a rebuttable presumption in favor of joint physical custody, but with a carefully drafted caveat that joint physical custody was not to be equated with equal parenting time. The original proposal buckled under a wave of opposition and the bill was ultimately replaced in its entirety. The new proposal created a study group to evaluate the potential effects of a joint physical custody presumption.11
Chaired by Judge Kevin Eide, the study group included representatives from the Minnesota Department of Human Services, the Center for Parental Responsibility, Minnesota’s Legal Aid Society, the State Bar, the Minnesota Chapter of the American Academy of Matrimonial Lawyers, the Minnesota Fathers and Families Network, and Minnesota Coalition for Battered Women, as well as other organizations. After several months of investigation and discussion, the study group issued its final report on January 14, 2009.
Despite the urging of some advocates of shared parenting, the study group’s recommendations proved quite modest. Noting the absence of reliable data relating to joint custody arrangements, the report deferred recommending any definitive changes in the law pending further study and data collection.12 To that end, the study group recommended that the legislature fund data collection regarding custody designations, parenting time percentages, child support, and party demographics.13 To the extent an immediate change in the law was contemplated, the study group urged legislators to promote “cooperative agreements” while still allowing the court to consider the needs of individual families. It further suggested that the meaning of any future joint physical custody presumption be clearly defined and its relationship to parenting time determinations be explained.14 The one, clear legislative recommendation made by the study group was the need for clarification of Minnesota’s physical custody statute to specify that there is no presumption for or against joint physical custody.15
Despite the cautious tone and modest conclusions of the study group report, its issuance was followed by the introduction of a much more ambitious bill in 2011. HF 322 called for a presumption of joint physical custody and equal parenting time except in cases of demonstrated child abuse.16 Following debate in both the House and Senate, HF 322 was amended to allow for a less significant increase in the minimum parenting time presumption, from 25 percent to 35 percent (a change of approximately one overnight visit every two weeks). HF 322 received strong bipartisan approval in both the House and Senate (86-42 in the House and 46-19 in the Senate) over the objection of the Family Law Section of the Minnesota State Bar Association, only to be pocket vetoed by Governor Dayton. Explaining his decision in a veto letter to the Speaker of the House, Dayton stated that “there is enough uncertainty about all of the ramifications of this legislation to persuade me to give pause to its enactment.”17 Dayton’s letter continued, encouraging further collaboration with the hope of signing legislation in 2013.
With the governor’s message in mind, an ad hoc coalition of stakeholders came together to create HF 2722. The stakeholders included some of the organizations involved in the 2009 Study Group Report (Minnesota State Bar Association’s Family Law Section, Minnesota Coalition for Battered Women, the Minnesota Chapter of the American Academy of Matrimonial Lawyers, and the Center for Parental Responsibility), as well as the Minnesota Legal Advocacy Project, the Minnesota Chapter of the Association of Family and Conciliation Courts, and Family Innocence Project. The bill was signed by the governor on May 5, 2014, and took effect on August 1. While the new bill is much more modest than its unsuccessful predecessors, it makes the following changes that litigants, practitioners, and courts will need to consider when negotiating and determining custody awards:
- There is no presumption for or against joint custody (except in cases of domestic abuse);
- Disagreement over whether physical custody should be sole or joint isn’t sufficient, by itself, to show that parents’ joint custody is not appropriate;
- Factual findings are needed whenever the parties disagree as to custody (whether sole or joint);
- The court may reserve determination of future expansion of parenting time and apply a best interests standard (including recognition of a child’s changing developmental needs) at a later date; and
- Increases in parenting time up to 54.9 percent are not “restrictions” of the other parent’s parenting time requiring a heightened modification standard.
The 2014 Amendments
Even if HF 2722 can broadly be read as a step toward greater acceptance of shared parenting arrangements, the legal effect of the amendments remains unclear. Generally speaking, the most meaningful changes can be lumped into two categories: those related to the establishment of physical custody and those relating to subsequent parenting time modifications. While the bill’s effects on the former category are much more modest, its consequences for the latter remain to be seen.
No Presumption against Joint Physical Custody. Following the recommendation of the study group, HF 2722 enshrines agnosticism as Minnesota’s official policy toward joint physical custody. While the change provides much needed legislative clarity, it arguably does little to change the law in light of recent pronouncements from the Minnesota Court of Appeals.18 Still, given a long line of case law disfavoring joint physical custody arrangements, an official statement of neutrality may have a substantial impact on some courts, particularly those in counties or judicial districts more prone to award sole physical custody.19
Supporting this policy of impartiality, the amended statute removes two other perceived statutory impediments to joint physical custody awards. First, Minn. Stat. §518.17 is amended to require courts to make detailed, best interest findings when joint or sole custody is awarded over the objection of one parent. (The former statute required findings only where joint legal custody was awarded over the objection of one or both parties.)20 Second, the amended statute specifies that disagreement over custody labels is not, by itself, sufficient to prevent an award of joint custody to the parties. While none of the foregoing amendments represents anything approaching a presumption in favor of joint physical custody (let alone the mandatory equal parenting time sought by some), the revisions can and should be read as a measured attempt to remove some of the more obvious barriers to joint physical custody awards.
New Standards for Modification. While the above changes are not insignificant, they are far outweighed by the revisions to the standards governing parenting time modifications.
Requests to modify parenting time can be broadly divided into two categories differentiated primarily by degree: restrictions and modifications. Substantial changes to an existing parenting time schedule, termed “restrictions,” are governed by the heightened “endangerment” standard codified in Minn. Stat. §518.175, subd. 5, and require the proponent of the change to demonstrate that the child is endangered in the other parent’s care or that the other parent has “chronically and unreasonably failed to comply with court-ordered parenting time.”21 By contrast, less substantial changes are treated as mere modifications and can be granted solely on a showing that the change serves the best interests of the child.22
Given the marked difference in legal standards, the success or failure of any given parenting time modification motion can hang as much on the standard chosen by the court (whether the change is termed a “restriction” or a “modification”) as on the reasons underpinning the request. Thus, in Simmer v. Simmer a reduction in a party’s parenting time from 50 percent to 30 percent was affirmed under a best interest standard.23 Yet, in Blair v. Blair a party’s proposal to adopt an equal parenting time schedule (resulting in a corresponding 30 percent reduction to the other parent’s time) was denied under a restriction standard, despite the fact that the parties shared joint physical custody.24 In the absence of a bright line distinction between modifications and restrictions, case law varied widely with seemingly incongruent and inequitable results.
The adoption of HF 2722 would, at first, seem a clear rejoinder to the reasoning in Blair. Contrary to the court’s holding in that case, HF 2722 specifically exempts “modification of parenting time which increases a parent’s percentage of parenting time to an amount that is between 45.1 to 54.9 percent parenting time,” from the heightened standard imposed on parenting time restrictions. At the same time, HF 2722 permits courts to “reserve a determination as to the future establishment or expansion of a parent’s parenting time,” so as to allow a future schedule modification to be determined under the lower, best interest standard. Reservations of this sort may be appropriate where a child is very young (the amendment actually calls out a child’s “changing developmental needs”) or where a parent has unresolved mental or chemical health concerns that, if addressed, make large expansions of parenting time appropriate at a later date.
Yet, despite the apparent intent of HF 2722, it remains to be seen whether this year’s amendments will meaningfully impact the ability of nonresidential parents to increase their parenting time based solely on best interest considerations.
Section 518.175, subd. 5 requires a court to modify parenting time where the modification would serve the child’s best interests. However, the statute only permits a best interest modification to the parenting time schedule if “… the modification would not change the child’s primary residence.” This portion of the statute remains unchanged by HF 2722. However, the meaning of the term “primary residence” remains unclear. As the court of appeals noted in Blair, a plain reading of the statute leaves open the question of whether “primary residence”—a term defined nowhere in statute—refers only to “a parenting plan provision which specifies the child’s primary residence” (mirroring the custody modification statute in §518.18) or more broadly to any motion that would change the child’s primary residence.25 The Blair court treated skeptically arguments that “primary residence” as used in the parenting time modification statute should be understood as equivalent to the same term as used in the phrase, “a parenting plan provision which specifies the child’s primary residence,” in the custody modification statute.26 But in the absence of guidance from the legislature, questions remain.
While it appears the new statutory amendments are designed to make it easier for a parent to obtain equal parenting time at a later date, these changes may be of little effect without greater legislative clarity as to when a parenting time modification “change[s] the child’s primary residence.” Imagine the following hypothetical:
Mother and father divorce when their child is three years old. They share joint physical custody and reside relatively close to one another but in different school districts. They chose to use traditional custody labels rather than entering into a parenting plan. Thus, the child’s primary residence is not specified. Because of the child’s age, father parents the child 35 percent of the time, and mother parents the child the remaining 65 percent of the time.
Following the enactment of HF 2722, the child is now six years old, and father brings a motion to establish an equal parenting time schedule. Mother, on the advice of counsel, understands that she cannot oppose the motion on the grounds that it would restrict her parenting time (because of the statutory amendments), so instead argues that the modification is a change to the child’s de facto primary residence. Therefore, mother reasons, father must demonstrate that the child is endangered in her care to increase his parenting time to 50 percent.
In his reply brief, father argues that HF 2722 was clear that increases in parenting time up to 54.9 percent are to be governed only by a best interest analysis, that the parties’ custody order is not a parenting plan which specifies the child’s primary residence, and that even if an equal schedule would modify the child’s primary residence, the endangerment standard does not apply.
Under these facts, it is difficult to determine which standard should apply, and one would expect divergent results from courts based on minor factual distinctions.27
Although the court of appeals has distinguished between “expanding parenting time” and changing primary residence, case law provides little guidance as to which of the above arguments should prevail.28 The contrast might be made clearer if father had only 10 percent time and mother 90 percent, or if father’s motion would result in the child changing schools, but the question would remain fundamentally the same. The problem is not easily resolved by the court “reserv[ing] a determination as to the future establishment or expansion of a parent’s parenting time,” as the same prohibition on modifying “primary residence” based solely on best interests is incorporated by reference into the reservation statute. Consequently, while the revised statute may offer some steps forward for parents seeking equal parenting time arrangements, courts may continue to impose heightened standards on any schedule that appears to change a child’s “primary residence.”
These questions and many more face judges and lawyers now that HF 2722 has gone into effect, yet the answers remain unclear. And while further amendments may be necessary to give full effect to the intentions driving HF 2722, its broader purpose is clear: a greater emphasis on the ability of courts to award joint physical custody and to implement equal or near-equal parenting arrangements even after a parenting time order has been entered.
William A. Winter is a partner with the firm of Linder, Dittberner, Bryant & Winter, and focuses his practice on all types of family law matters, including marriage dissolution, custody and parenting time issues, adoption, and mediation. Bill graduated from William Mitchell College of Law in 1994, and has been honored as a Super Lawyer for the past 10 years.
Michael P. Boulette focuses his practice with Lindquist & Vennum on marital dissolution, custody, and post-decree and appellate work in cases with complex financial and custodial issues. A 2010 magna cum laude graduate of the University of St. Thomas Law School, he served as Articles Editor for the University of St. Thomas Law Journal.
1 Gretchen Livingston, “Growing Number of Dads Home with the Kids,” Pew Research Center Social and Demographic Trends (06/05/2014). http://www.pewsocialtrends.org/2014/06/05/growing-number-of-dads-home-with-the-kids/
2 Wendy Wang, Kim Parker, and Paul Taylor, “Breadwinner Moms,” Pew Research Center Social and Demographic Trends (05/29/2013). http://www.pewsocialtrends.org/2013/05/29/breadwinner-moms/
3 Arizona Sen. Bill 1127 (2012).
4 Arkansas Sen. Bill 901 (2013).
5 South Dakota Sen. Bill 74 (2014).
6 Jonathan Ellis, “Shared parenting could be new divorce outcome,” USA Today (01/27/2014).
7 Illinois House Bill 5425 (2014).
8 Michigan House Bill 4120 (2013).
9 Florida Senate Bill 718 (2013) (This bill would have also reformed the state’s spousal maintenance law and put an end to permanent spousal maintenance).
10 Nebraska Legislative Bill 212 (2013).
11 Minn. Laws 2008, Chapter 299.
12 Minnesota Joint Physical Child Custody Presumption Study Group Report (2009), p.4-5.
13 Id. at pp. 20-21
14 Id. at p.21
16 Minnesota House File 322 (2011).
17 Dayton, Mark, Letter to The Honorable Kurt Zellers (05/24/2012).
18 See, Schallinger v. Schallinger, 699 N.W.2d 15 (Minn. App. 2005).
19 See, Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993).
20Minn. Stat. §518.17, subd. 2(d) (2012).
21 Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn.App.1992).
22 Minn. Stat. §518.175, subd. 5.
23 Simmer v. Simmer, 2004 WL 1662215 (Minn. App. 07/27/2004); see also, Brevik v. Brevik, 2013 WL 5508244 (Minn. App. 10/07/2013) (affirming under a best interest standard a reduction in father’s time from slightly more than 40% to just over 25%).
24 Blair v. Blair, 2013 WL 869901 (Minn. App. 03/11/2013).
25 Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 677 n. 4 (Minn.2004) ( “[t]he legislature would not have employed different terms in different subdivisions of the statute if it had intended those subdivisions to have the same effect”); Apple Valley Red–E–Mix, Inc. v. State by Dept. of Pub. Safety, 352 N.W.2d 402, 404 (Minn.1984) (in pari materia is a canon of statutory construction which provides that statutes relating to the same person or thing or having a common purpose should be construed together); 2A Norman J. Singer, Statutes and Statutory Construction § 46.06 (6th ed. 2000) ( “when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended”).
26 The court’s skepticism may be misplaced as both the “primary residence” language in §518.175, subd. 5 and the language in §518.18 referring directly to “a provision of a parenting plan which specifies a primary residence” were added in the same statutory amendment in 2000. See Minn. Sess. Laws c. 444, art. 1, sec. 5.
27 The uncertainty surrounding parenting time modifications that modify the child’s “primary residence” was enunciated by Judge Chutich in her dissent in Himley v. Himley, 2013 WL 4504379 (08/26/2013) (statutory language suggests that if modification would change the child’s primary residence, the best-interests standard is not appropriate and more stringent endangerment standard applies).
28 Raymond v. Schultz, 2009 WL 2998021 (Minn. App. 09/22/2009).