For decades, family law and guardianship have existed as distinct legal regimes with very different purposes. But recent changes to Minnesota child support laws have set them at odds with each other, with sometimes disastrous results for families whose children have disablities.
Collisions are messy. When cars or trains or planes collide, the outcome is noisy, painful, and often disastrous.
But recently, another sort of collision has taken place almost entirely without notice: the collision between two well-established bodies of Minnesota law.
For decades, family law and guardianship have existed as distinct legal regimes with very different purposes. However, as the result of statutory amendments that accompanied a change in Minnesota’s child support laws, these two regimes have now collided with all the painful and disastrous outcomes the term implies.
The essence of the current conflict has long been simmering beneath the surface of what it means to have “custody” of a child as compared to “guardianship” of that same child once he or she becomes an adult. While these have long been discrete concepts, they may not stay that way for long, particularly for divorced parents who have children with disabilities.
Custody Versus Guardianship
In any divorce or child custody proceeding, a court must decide who will have legal and physical custody of the parties’ minor children.1 Statute defines legal custody as “the right to determine the child’s upbringing, including education, health care, and religious training,” while physical custody “means routine daily care and control and the residence of the child.”2
But a parent’s power to make decisions typically lapses when her child reaches 18.3 Where continued decision-making powers remain necessary, Minnesota’s probate statutes permit a parent, or other interested person, to petition for guardianship.
But what, if any, continuing power inheres in a child custody order where a child remains forever incapable of making his own decisions, even after age 18? Can statutory rights granted to a parent as a legal or physical custodian continue to hold sway in a later guardianship proceeding?
For many years, the bench and bar agreed on the answer: no. Child custody awards are intended to be just that: child custody awards, no more applicable to an adult with disabilities than to any other adult.4
But this long-held wisdom is being challenged in several recent unpublished decisions out of the Court of Appeals, most notably In re Guardianship of Vizuete.5
In Vizuete, the parents divorced in 1998 and agreed to share joint legal custody of their then-five-year-old daughter, Heidi, with Ms. Vizuete awarded Heidi’s sole physical custody. Heidi was diagnosed with autism spectrum disorder, and shortly before Heidi turned 18 both parents sought appointment as her guardian under Minnesota’s probate statutes. Following trial the district court found that Heidi met the definition of an incapacitated person under Minnesota Guardianship law,6 and appointed Heidi’s mother as guardian. In support of the appointment, the district court found that the mother’s appointment best served Heidi’s interests and cited her status as Heidi’s primary caretaker. At trial, Heidi even went so far as to testify that she did not wish to have her father appointed as her guardian as their relationship was strained. Heidi’s father appealed the appointment, arguing that the guardianship order effectively terminated his parental rights as a joint legal custodian under the 1998 custody order.
The Court of Appeals agreed. In Vizuete I, the Court reasoned that, as an incapacitated adult, Heidi remained a “child” for the purposes of Minnesota’s child custody statutes. Because Heidi continued to be a “child” subject to her parents’ custody, the district court was not permitted to “abrogate existing custodial rights over the objection of a custodial parent,” by appointing Ms. Vizuete as Heidi’s sole guardian.7 Accordingly, the Court of Appeals reversed and remanded to the district court to “consider” the custodial agreement between the parties and to determine whether modification of custody is permitted under the custody modification statute, Minn. Stat. §518.18.
On remand, Ms. Vizuete sought to modify custody, while Mr. Vizuete continued to seek appointment as Heidi’s guardian, as well as parenting time assistance. The district court denied Ms. Vizuete’s motion to modify the 1998 custody order, finding that she failed to allege sufficient facts to warrant a modification. The court then proceeded to analyze the parties’ respective rights as joint legal custodians under the powers available under the guardianship statute. To avoid abrogating either party’s custodial rights, the district court named Ms. Vizuete as Heidi’s unlimited guardian, granting her powers analogous to those she held as a joint legal and sole physical custodian. The district court then appointed Mr. Vizuete as Heidi’s limited co-guardian with authority to participate in major decisions determining her education, health care and religious training, consistent with his status as a joint legal custodian. However, the district court denied Mr. Vizuete’s motion for parenting time with Heidi, finding that Minnesota law provided for parenting time only “during the minority of the child.”8 While Heidi, now twenty-one, remained a “child” under the reasoning in Vizuete I, she was no longer a “minor child.”
Mr. Vizuete appealed, and the Court of Appeals affirmed in Vizuete II.9
When is a Child no Longer a Child?
At the heart of the Court of Appeals’ decision in Vizuete I and II is the unique meaning of the term “child” in Minnesota’s family law statutes. Minn. Stat. Ann. §518A.26, subd. 5, defines “child” for the purposes of Chapter 518 (governing marriage dissolution and child custody) and Chapter 518A (governing child support) as:
“[A]n individual under 18 years of age, an individual under age 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support.”
Thus, when a child has disabilities, age is not determinative as to when she becomes an adult. Instead, courts must determine if the individual remains “incapable of self-support.” For adults with disabilities like Heidi Vizuete, this may mean that, whatever her chronological age, she will remain a child forever for the purposes of Minnesota’s custody and parenting time statutes.
But this was not always the case. Prior to 2005, this unique statutory definition of child applied only to Minnesota’s child support laws.10 Thus, before the law’s amendment, a parent of a child with disabilities might remain obligated to pay child support for the life of the child,11 but that child did not remain subject to a parent’s custody.12 It was only when the legislature amended Minnesota’s child support laws in 2005, that the more limited definition of “child” was expanded to apply to include Minnesota’s custody and parenting time laws.13
Interestingly, this may be a matter of unintended consequences, as there is no indication that, by relocating the statutory definition of child, the legislature meant to expand the authority of district courts to determine custody or parenting time matters for adults with disabilities.14 However, in Vizuete I, the court specifically relied on Section 518A.26’s definition of child in holding that Heidi remained subject to her parents’ custody even after reaching the age of majority. Similarly, in another recent case, In re Marriage of Ferrell v. Ferrell, the Court of Appeals remarked in a footnote that the parties’ disabled adult daughter remained a “child” for custody and parenting time purposes.15
Reading Minnesota’s custody statutes on their face, the reasoning in Vizuete and Ferrell may seem logical, and even compelling. But we have good reason to be skeptical, in no small part because this reasoning presents broader problems of statutory coherence far beyond the definition of “child.”
“Minor” v. “Child”
While statute defines “child,” many of Minnesota’s custody and parenting time statutes refer not to “children” but to “minor children,” where statute defines “minor” as an individual under age 18.16 Thus, under Section 518.17, a court may only determine the legal and physical custody of “minor” children,17 and Section 518.175 permits a court to order parenting time only so long as a child is a minor.18 Similarly, Minnesota’s version of the Uniform Child Custody Enforcement and Jurisdiction Act—the subject-matter jurisdiction statute governing all custody and parenting time proceedings—is clear that a district court’s authority extends only throughout the children’s minority, which ends at age 18.19
The result is a muddle of terms and concepts that defies easy explanation. An adult with disabilities may be a “child” for the purposes of custody, but not for the purposes of parenting time. An adult with disabilities may remain a “child” if a custody order was entered before her 18th birthday, but may not be treated as a “child” if her parents divorced after she turned 18. Both of these seemingly contradictory results are borne out by recent case law, the first by Vizuete II and the second by Castle-Heaney v. Heaney,20 a case addressing the same statutory conundrum, albeit not in the context of a child with disabilities.
In addition to these odd statutory permutations, a district court’s custody order itself might limit its applicability by awarding only custody of the “minor children” rather than simply custody of the children. Thus, if the terms of an order awards custody “during the minority of the child” or refers to “custody of the minor child” rather than simply custody “of the child,” there is a compelling argument that the custody order only applies until the child attains the age of 18.21
The net result is a legal quagmire that disproportionately affects adults with disabilities and their parents.
Custody: the Rights of Parents
Beyond the statutory confusion discussed above, broader policy concerns arise from trying to mix two bodies of law as different as custody and guardianship.
Family court orders are fundamentally focused on parent-child relationships,22 and are typically adjudicated to address the substantive rights of the parents or other custodians as against one another, rather than as against the child who is subject to the custody order. Even where such custodial rights are determined in light of the best interests of the child, they nonetheless govern parental rights.
In understanding the forces that motivate Minnesota’s custody laws, we should be mindful that while a child’s best interests are central, the rights of parents are also a weighty consideration. For well over 100 years, our courts have observed two general doctrines in child custody determinations:
“The first of these doctrines stands for the proposition that mother is entitled to the custody of her children unless it clearly appears that she is unfit or has abandoned her right to custody, or unless there are some extraordinary circumstances which would require that she be deprived of custody. The second doctrine is the so-called best-interest-of-the-child concept, according to which the welfare and interest of the child is the primary test to be applied in awarding custody.”23
Following a decision by the United States Supreme Court, the former principle has been elevated to constitutional status and afforded increased statutory protections.24
Another defining feature of custody decisions is the focus on stability. Minnesota’s statutes and case law “reflect a settled policy view that stability of custody is usually in the child’s best interest.”25 Consistent with this policy view, a court may only modify an established custody order subject to the heightened standards of Minn. Stat. §518.18, which, as most commonly used, requires either the consent of the custodian or demonstration of a change in circumstances that endangers the child’s physical or emotional well-being.
Viewed at macro level, custody is fundamentally about the custodian’s legal rights to make decisions for a child, and those rights typically are granted in aggregate—as either a legal or physical custodian—without respect to the child’s ability, or lack thereof, to make decisions for herself. Once these rights have been granted to a parent or other custodian, our law values stability except in extreme cases.
However, the new collision between family court and probate courts increasingly forces us to question whether the standards that govern children during their minority can rightly be applied to adults with disabilities.
Guardianship: the Rights of Wards
A guardianship is often needed for a child with disabilities after the child attains the age of 18. For example, in Vizuete I, the court noted that after the ward attained the age of 18, the social worker was required to work directly with the child until a guardian was appointed. Medical decisions, schooling and social services are all governed by the fact that the child attained the age of 18 and is therefore an adult who is supposed to address such issues alone. A guardian is needed where an adult still requires assistance in handling these day-to-day affairs. But the guardian’s powers are only granted to the extent necessary to assist the individual with his or her needs, with preference being given to less restrictive alternatives to a guardianship.26
Reading Minnesota law consistent with the Court of Appeals’ decision in Vizuete I, a later guardianship determination for a disabled adult must give way—at least to a substantial degree—to the custody determination that governs that same adult during her minority. But, as noted above, guardianship and custody are discrete concepts, each with its own unique set of goals and considerations. While it is not hard to find supporters of the Vizuete decisions, other practitioners, including your authors, hold grave reservations that such reasoning ignores the best interests of wards as adults in favor of the rights of their parents.
The main focus of guardianship law is to maximize the rights and protect the best interests of the ward as an adult person. To that end, guardianship law seeks to encourage the growth and independence of the ward and to protect as many of the ward’s individual rights as possible.27
In comparison, our family law statutes focus on the best interests of the child, but viewed through the prism of parent-child relationships and the constitutional rights of parents. Because our statutes and case law have historically focused on the rights of parents vis-à-vis one another or other proposed custodians, relatively little attention has been paid to the rights of a parent vis-à-vis their child.
Thus, a child subject to a custody order cannot be said to retain discrete rights—at least not arising from our family law statutes—to make decisions apart from those of her custodian. A mature child does not seek to have some or all of her parents’ custodial rights removed, while allowing a parent to retain others. Nor does a child challenge her parents’ decision as to school choice or medical care in family court. Perhaps most importantly, while a child’s preference can be given weight in custody decisions, a child does not, absent extraordinary circumstances, choose to have a non-parent serve as her custodian. Instead, bundles of rights are granted to parents as a child’s custodian without individual parsing as to which rights a parent should be granted and which should be retained by the child.
This is in marked contrast to our guardianship statutes and case law, which “restricts the power of guardians to include ‘only those powers necessitated by the ward’s limitations and demonstrated needs,’ and it directs the district court to issue ‘orders that will encourage the development of the ward’s maximum self-reliance and independence.’”28
Further, while a guardianship may be modified to seek less restrictive alternatives for the ward that allow the person greater access to her individual rights, custody orders may only be modified by consent of a parent or upon demonstration of changed circumstances that endanger the child.29 Guardianship law also secures each child with a bill of rights to protect their rights from intrusion, including intrusion from a parent.30 No such rights exist under our custody statutes.
Unlike child custody determinations, guardianship law is wholly focused on the rights of the ward and has not historically concerned itself with the rights of the ward’s parent. Thus, while parents and other relatives are accorded priority status to act as potential guardians, the ward’s best interests are paramount in the selection of a guardian.31 Unlike awards of custody to third parties, appointing a non-parent as a guardian is not even subject to a heightened evidentiary standard, and persons other than a parent may be appointed solely based on a preponderance of the evidence.32
A basic point may illustrate these differences more clearly than any other. In Vizuete I, Heidi indicated that she did not wish to see her father because of his “anger issues,” and Heidi objected to his attempts to obtain guardianship of her. Without suggesting that this was the case in Vizuete, these facts present an important question: What happens when a child simply doesn’t like her parents?
In family court, a child may dislike her parents, but dislike alone typically does not grant her the right to seek an alternate custodian. But adults, even adults subject to a guardianship, are not required to like their parents, nor has our guardianship law traditionally compelled these adults to remain subject to their control, which can include mandatory residence with a parent.
Perhaps one of the most basic rights of adult persons is the right to associate—or not associate—with whomever we please. While family court aims—rightly, the authors believe—to promote and encourage healthy parent-child relationships, probate court must protect the liberty of the ward to be able to enjoy the rights of free association, which includes the right to not associate with persons the ward chooses, even if that person is a parent.
In short, the probate court’s job is to protect the rights of the ward as an independent adult. The role of a family court is to protect the child within the context of promoting healthy parent-child relationships. While, in the best of cases, these two roles might be complementary, in at least some cases they will not be. This is particularly true where parents have divorced or separated and “the members of a family are divided into hostile camps.”33
These distinct roles are important, and should be maintained. Indeed, we would argue they must be maintained to avoid running afoul of equal protection claims that might arise from treating adults with disabilities whose parents divorced as subject to the custody of their parents, while treating adults with disabilities whose parents are married by a different standard.
Throughout this article, we have depicted Minnesota’s custody and guardianship statutes as being on a collision course. However, in arguing that Minnesota should maintain guardianship and custody as discrete concepts, we do not mean to elevate one body of law over the other. Minnesota courts are rightly concerned with our most vulnerable citizens, whether children or adults with disabilities. But we do not serve either group by treating adults with disabilities as simply older children.
Disabilities present challenging questions, and we should expect any answers to be similarly challenging. Simple though it may seem, statutorily transforming adults with disabilities into children does not serve either families or persons with disabilities. Instead, both courts and lawmakers must eschew a one-size-fits-all approach if we are to meaningfully confront the unique reality faced by persons with disabilities and their families.
Mike Boulette focuses his practice at Lindquist & Vennum on divorce, custody, and post-decree and appellate work in cases with complex financial or custodial issues. Mike is a frequent commentator on family law issues; in 2014, he launched family-in-law.com, a blog covering family law news and trends.
Bob McLeod practices at Lindquist & Vennum exclusively in the area of estate planning, probate, trusts, guardianship and conservatorships. Bob collaborated with the Minnesota Legislature on drafting portions of the state’s trust and probate code, including a significant part of the guardianship code.
1 Minn. Stat. Ann. §518.17, subd. 3 (2014).
2 Minn. Stat. Ann. §518.003 (2014).
3 Minn. Stat. Ann. §645.451.
4 In re Anwiler, No. C2-00-389, 2000 WL 1240203 at *1 (Minn. Ct. App. Sept. 5, 2000); In re Guardianship of Rhoda, 2006 WL 771469 at *2 (Minn. Ct. App. March 28, 2006).
5 No. A12-1279, 2013 WL 3368334 (Minn. Ct. App. 2013); No. A14-474, 2015 WL 404535 (Minn. Ct. App. 2015).
6 See Minn. Stat. §524.5-102, subd. 6.
7 In re Guardianship of Vizuete, No. A12-1279, 2013 WL 3368334, at *7 (Minn. Ct. App. July 8, 2013), review denied (Sept. 17, 2013).
8 Minn. Stat. Ann. §518.175 (2014).
9 In re Guardianship of Vizuete, No. A14-0474, 2015 WL 404535 (Minn. Ct. App. Feb. 2, 2015).
10 See Minn. Stat. Ann. §518.54, subd. 2 (2004).
11 Krech v. Krech, 624 N.W.2d 310, 312 (Minn. App. 2001).
12 See In re Anwiler, No. C2-00-389, 2000 WL 1240203 at *1 (Minn. Ct. App. Sept. 5, 2000); but c.f. See Jarvela v. Burke, 678 N.W.2d 68, 72 (Minn. App. 2004) (suggesting in a footnote that mother retained custody over the child after the age of 18).
13 Minn. Laws 2005, c. 164, §§?, 29.
14 Attorneys Alan Eidsness and Jaime Driggs have expressed a somewhat different viewpoint. “Family Law: Questions about custody of 18-year-old,” Minnesota Lawyer, Dec. 4, 2014.
15 Ferrell v. Ferrell, No. A13-2005, 2014 WL 6608830, at *7 (Minn. Ct. App. Nov. 24, 2014).
16 Minn. Stat. §-645.45 (14) (2014).
17 Minn. Stat. §518.17, subd. 3(a)(1), (2) (2014); Minn. Stat. §645.45 (14) (2014) (defining “minor” as an individual under age 18); see also Castle-Heaney v. Heaney, No. A13-1776, 2014 WL 4671096 at *3 (Minn. Ct. App. Sept. 22, 2014) (accord).
18 See Minn. Stat. §518.175 (2014) (stating that parenting time determinations are effective “during the minority of the child”); see also In re Guardianship of Vizuete, No. A14-0474, 2015 WL 404535 at *6 (Minn. Ct. App. Feb. 2, 2015) (accord).
19 See Minn. Stat. §518.155 (2014) (limiting the court’s authority to those matters over which it has jurisdiction under Chapter 518D); Minn. Stat. §518D.201(a), (b) (2014) (providing that Chapter 518D is the “exclusive jurisdictional basis for making a child custody determination” in Minnesota); Minn. Stat. §518D.102(c) (2014) (defining “child” as “an individual who has not attained 18 years of age”).
20 No. A13-1776, 2014 WL 4671096 at *3 (Minn. Ct. App. Sept. 22, 2014).
21 See Rew v. Bergstrom, 845 N.W.2d 764, 782 (Minn. 2014).
22 See Minn. Stat. Ann. §518.175, subd. 1,.
23 Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971).
24 See Minn. Stat. §257C; SooHoo v. Johnson, 731 N.W.2d 815, 823 (Minn. 2007); In re Kayachith, 683, N.W.2d 325, n. 1 (Minn. Ct. App. 2004); Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000).
25 Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. Ct. App. 1990).
26 Minn. Stat. §524.5-310(a), (c).
27 Minn. Stat. §524.5-310(c).
28 In re Guardianship of O’Brien, 847 N.W.2d 710 (Minn. Ct. App. 2014), citing Minn. Stat. Ann. §524.5-310(c).
29 Minn. Stat. Ann. §524.5-317(b).
30 Minn. Stat. Ann. §524.5-120; Minn. Stat. Ann. 518.18.
31 Minn. Stat. Ann. §524.5-309(b); In re Guardianship of Schober, 303 Min. 226, 230, 226 N.W.2d 895, 898 (1975).
32 In re Guardianship of Wells, 733 N.W.2d 506, 510 (Minn. Ct. App. 2007); c.f. In re Custody of A.L.R., 830 N.W.2d 163 (Minn. Ct. App. 2013).
33 Schmidt v. Hebeisen, 347 N.W.2d 62, 63 (Minn. Ct. App. 1984).