The House of Representatives passed a bill encouraging joint custody in Minnesota. As I posted previously, the joint custody bill is supported by many in Minnesota, although it certainly critics. The Minnesota Family Law Section, which is the main body of representing family law lawyers with the Minnesota bar, opposes the bill.
The legislature passed HF322 and it is currently in front of the governor to make a decision on whether to approve the bill. The bill passed the Senate with a 46-19 vote, and it now must have the governor’s signature before it is passed into law. If the bill becomes law, it would go into effect in July of 2013.
What is in the Joint Custody Bill?
The bill would make a presumption of joint physical custody between parents in Minnesota. A presumption means that judges would have to start with the standard that each parent gets joint physical custody in every family law case.
The bill has been revised several times, but the current bill would support each parent receiving 35 percent of parenting time with their children. That is a large increase from the 25 percent presumption under current law. Those who oppose the bill say that creating such presumptions could lead to more litigation over parenting time. Of course, the bills supporters claim that the bill would lead to less litigation. As somebody who practice law and helps people with their Dakota County divorce, I think the bill is a good idea, but I am skeptical about how well it actually work.
The presumption of joint physical custody could be overcome by one side showing evidence of mistreatment or other abuse which triggered child protection proceedings. If a court found mistreatment of a child, it would be required to make findings pursuant to the Maltreatment of Minors Act.
Representative John Lesch also added an amendment that would allow parenting time to include “virtual parenting time” via phone or electronic means.
Minnesota Lawyer has reported that the fiscal notes for the bills estimate increased costs of up to $4 million a year in court expenses. However, that is not support by the supporters of the bill.
What is not in the joint custody bill?
The bill does not change the standard for child custody in Minnesota. The standard remains the “best interest of the child standard.” Therefore, when a judge makes a determination of child custody and who should receives primary physical custody, the judge will still use the same standard.
The bill does create a presumption of more parenting time. The bill does not, however, mean that each parent will get 50/50 parenting time. Furthermore, presumption can be rebutted by either party. This means that lawyers can still argue that the presumption is not in the best interest of a child. The judge still has discretion to determine what is in the child or children’s best interest.
The bill is ostensibly supposed to encourage co-parenting and more time with each parent. That is a laudable goal in my mind. There is a lot of evidence related to children who have frequent contact with both parents are more well adjusted and emotionally stable. Custody and parenting time are very important to both children and their parents and I support any bill which encourage more time with each parent.
However, as the Minnesota Family Law Section argues, the bill could create further litigation in a legal field which is already full of litigation. From my perspective as a divorce lawyer, people will always fight over parenting time, custody, and all things related to their children. Could this bill simply add another hurdle to pass for Minnesota parents and their lawyers? Will the bill simply encourage more litigation and people trying to overcome a burdensome presumption? There is nothing in the bill which stops parents from doing that.
In sum, I’ll keep readers posted on this issue. The bill, if approved by the governor, would be a big change in Minnesota law.
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