Update: Now that many of these bills have become law, I’ve posted in more detail.  You can find my post on changes in child support (here and here), child custody (here and here), and custody for military families (here)

They’re here.

After two years of work and a lot of compromise, Minnesota’s custody and child support laws are in for some big changes this legislative session, led by some of the same politicians and lawyers that have traditionally found themselves on opposite sides of these debates.

The past few weeks have seen the introduction of six bills (HF 446, HF 451, HF 464, HF 465, HF 512 and HF 518) aimed at a range of topics from a complete revamp of the custody best-interest factors, to changes in how we compute interest on family court judgments, to a legislative-end run around some unpopular Court of Appeals decisions.

But not all of us are chanting vive la revolution. At least not yet.

I’ve been reviewing these bills in their varying drafts since they started appearing before the Minnesota State Bar Association’s family law section, and while some represent good common sense change, others leave me wondering just what we’re getting ourselves into.

But unlike many prior attempts to change our custody and child support laws, most of the traditional stakeholders have lined up behind these proposals, and I’m predicting that the bills won’t see much meaningful opposition on their way to the Governor’s desk.

So like ’em or hate ’em, we all better learn them, because they’re likely to be law by the end of this session.

Laws and Sausages.

Before switching into full-on legal-geek mode: a little history on how these bills came to be.

The bills are the product of the Minnesota Custody Dialogue Group.  No need to Google it. The group doesn’t have a webpage or any official presence of its own.  Because it’s really not a group at all, but more a coalition of stakeholder organizations who have fought and re-fought the battle over Minnesota’s custody laws for the better part of the last fifteen years.

Formed after the failure of HF 322 in 2012 (and HF 1262 before it), the Custody Dialogue Group was intended to be the “collaboration among legislators of both parties and the various stakeholders” Governor Dayton called for in his veto message the last time these sides met on the proverbial Pelennor Fields.

So who exactly is in involved? Here’s a short list of the players (there may be others, but each of these organizations has been identified in prior committee testimony):

*In the interest of full disclosure, I’m a member of both the Family Law Section of the Bar and the Association of Family and Conciliation Courts, though I didn’t participate in the drafting of this legislation. 

The Dialogue Group also has four members of the legislature: Rep. Tim Mahoney (DFL-St. Paul), Rep. Carolyn Laine (DFL-Columbia Heights), Rep. Kim Norton (DFL-Rochester) and Rep. Peggy Scott (R-Andover) who are helping to shepherd the bills through the lower chamber.

All told, the group has been meeting for roughly two years, first creating a list of 26 principles that would guide their legislative reform efforts, and then turning their attention to crafting specific legislative proposals including HF 2722 which passed unanimously last year (you can read my post on that bill here), and all six bills offered this session.

That this group would be so prolific was hardly a foregone conclusion.  To quote Representative Mahoney in a statement to the House Civil Law Committee:

There was a whole cast of characters that have been involved in this.  We’ve spent the last year plus a few months – we’ve been in mediation.  The Governor vetoed a 35% bill two years ago.  Asked people to get together and talk.  I really had no interest nor any belief that it would actually do anything.  One of my opening statements was that I didn’t trust anybody in the room.  When I walked into the room of all these people.  Today, I can say I actually trust the people to talk openly, honestly and keep their word.  And I want to thank all of them.  That’s quite the statement after 10 years of battering around with big child custody stuff.  I was pretty – I think a lot of people were very bruised.

So, whatever else we may think of these bills, they’re no small achievement in consensus building.

And if last session’s experience with HF 2722 is any indication, all that hard work is likely to pay off.  These bills may be cruising towards easy passage.

Alright, Already.  What Do They Do?

Fair question.  And before getting to the color commentary, it seems only fair to do a (relatively) quick bill-by-bill rundown. So here goes nothing.

HF 446

Creates a list of  factors to be considered in allocating dependency exemptions between parents. It also removes the requirement that a non-custodial parent should have to be current on his/her child support in order to claim the exemption, making this condition permissive instead. c.f. Biscoe v. Biscoe, 443 N.W.2d 221, 225 (Minn. Ct. App. 1989).

The bill also provides procedures for obtaining relief where the other parent has claimed a dependency exemption in violation of a court order.

HF 451

  • Modifies the language on the Recognition of Parentage form to  make it clearer that signing a Recognition does not give you custody–only the right to ask a Court to establish custody.
  • Removes the presumption that the parent with primary physical custody is presumed not to have to pay child support (to be a child support “obligor” in the words of the statute).
  • Reduces the base-line for imputing potential income for child support to  30 hours per week at 100% of minimum wage (rather than 40 hours per week at 150% of minimum wage).
  • Permits a Court to waive child support for a parent with 10-45% parenting time (between 3 and 13 overnights per month) where there is a significant income disparity in the parent’s incomes.
  • Creates new procedures for notifying credit reporting agencies of past-due child support.

HF 464

  • Changes how Courts include notice of the parental rights typically included in a document known affectionately as “Appendix A.”
  • Exempts family law judgments over $50,000 from the 10% interest rates imposed by statute (reversing Redleaf v. Redleaf and Soeffker v. Soeffker which I wrote about here).

HF 465

Completely re-writes the “best interest” factors that Courts use for making custody and parenting time decisions.  Some factors are completely gone:

“the wishes of a parent”

Others are reworded:

“the reasonable preferences of a child, if the court deems the child to be of sufficient age to express a preference”

is replaced with

“the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference”

And some are completely new:

“the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent”

The bill also provides what I interpret as guiding principles or cannons of construction for courts applying the best interest standards, including:

The court shall consider that it is in the best interests of the child to promote the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents.

and

The court shall consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child’s needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures. 

With all of these changes, the bill pares our 13 best interest factors down to 12 and does away with the four “joint custody” factors altogether.

HF 512

Revamps Minnesota’s child support laws to mirror those already in effect in Oregon. The basic idea is that instead of receiving a small child support offset for parenting time between 3 and 13 overnights per month (called 10-45% parenting time) and an even bigger offset for equal parenting time, there will be 365 teeny-tiny offsets that reduce child support for each additional overnight you parent.

Oh, and those adjustments can be based on parenting time actually exercised rather than what’s in the Court order if the actual schedule “deviates significantly” from what was ordered.

HF 518

  • Rewords the presumption of 25% parenting time (approximately 8 overnights per month) to read that a parent should receive “a minimum of” 25% as opposed to “at least” 25% parenting time as the section is currently written.
  • Revises the legal remedies available for denied parenting time.
  • Increases the amount of financial information ex-spouses and parents are required to provide to one another on a bi-annual basis.
  • Reverses some unpopular Court of Appeals’ decisions. Didn’t like the holding in Gossman v. Gossman? Neither did I.  This bill reverses it, and allows parties to modify previously waived maintenance awards by agreement. I didn’t much care for the Leifur v. Leifur either. The bill reverses that decision as well and allows parties to modify child support to either a) a date they can agree upon or b) a date when income information should have been provided and wasn’t.

The Good.

While I have my reservations about these bills, there’s still a lot to like.

The demise of Gossman and Leifur give divorced and separated couples more power to control their own destinies by broadening the range of permissible agreements.

The end of 10% interest on large family court judgments will mean the interest rate on your divorce settlement will look more like a mortgage than a payday loan.

And the standard for dealing with dependency exemptions always was unhelpfully vague, so I’ll take some extra clarity any day.

I also see no harm in tweaking the language on statutory forms like a Recognition of Parentage or Appendix A to help clarify the rights and obligations associated with each.

But even with these bright points, I’m not jumping up and down. Not yet, anyway.

The Bad.

Amidst a number of good, common sense reforms, there are a few that leave me feeling like this:

Okay, that may be an exaggeration, but I’m still not past the glow of a Pat’s Super Bowl win and I just love that GIF.

I’m particularly bothered by the complete re-write to our child support laws. Laws that only went into effect in 2007, and that we’re still very much working the kinks out of.

At its heart, the bill aims to avoid the two child support “cliffs” (one between 9.9% and 10% of parenting time, and the other between 45% and 45.1%) that can result in drastically different child support obligations depending on which side you’re on.  The thought is that removing these cliffs will disincentive financially-motivated custody disputes.

While I’m sympathetic to the desire to avoid child support cliffs, and thus reduce child-support-driven fights over parenting time, I’m not convinced this statute does the trick.

If two cliffs are problematic (a point of which I’m not entirely convinced) then are 365 mini-cliffs (hillocks? mounds? escarpments?) really an improvement?  Should we really expect that providing couples more things to fight over will reduce fighting overall (on the rationale that each thing fought for is that much less valuable)?

Maybe. But I’m fully expecting the Law of Unintended Consequences to hit us full force on this one.

I’m also questioning whether this isn’t a solution in search of a problem.

Yes, child support “cliffs” can, on occasion, lead to inequitable results.  So can the use of the child support calculator.  Or any legal presumption or guideline at all, come to that.

But the presence of these so-called cliffs can also provide parents with room to flexibly explore a broad range of parenting time solutions without the fear that they’ll need to head back to the calculator if parenting time changes or expands.

Under the current model, a parent can have anywhere between 3 overnights per month and 6 overnights every two weeks without an effect on child support.

Is that unfair? Maybe.  But it also allows parents a good deal of room to experiment with schedules without one or the other looking over their shoulder to calculate the child support savings (or loss).

This isn’t to say our current laws are anything approaching an unassailable model of perfection (they’re not).  But we should be cautious about viewing this change as an unequivocal good or a fool-proof method of taking economic motives out of parenting time disputes.

It’s neither.

The Arguably Ineffectual.

But maybe the biggest disappointment here are those changes which, though apparently radical, may be more like window dressing than a substantive overhaul of our custody statutes: the revised Best Interest Factors.

In a recent piece for Minnesota Lawyer, the perennially quotable Alan Eidsness and Jamie Driggs summarized the changes to the Best Interest Factors this way:

As a whole, these changes appear to modernize the factors to require a more sophisticated analysis that is even more singularly directed at determining custody and parenting time based on the needs of the child. These changes also reflect an expectation that both parents will play a substantial role in parenting a child.

And while I don’t disagree with their interpretation of the bill’s intent, I’m skeptical it will have the desired effect.

Regardless of any changes in the law, best interest factors ultimately must be applied by a court to the unique circumstances of each family.  And that application is almost never reversed by a higher court:

The laws leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.

Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000) .

So if the impetus for legislative action is dissatisfaction with the way courts apply an admittedly amorphous legal standard, can we reasonably expect that creating a differently amorphous legal standard will meaningfully change custody outcomes for families?

If you can’t tell, I think it’s unlikely.

But that doesn’t mean we should pack up shop.

Instead, we should acknowledge that the law isn’t necessarily the problem.

Once we realize that this isn’t a problem whose solution we can legislate around, we can shift our focus to providing sound, research-based guidance to our decision-makers on the complex issues of family dynamics, child development, and parenting.

If we want to affect real change in how judges make custody decisions, we should give them real guidance.  Something more like Arizona’s “Guide for Parents Living Apart” or Indiana’s “Parenting Time Guidelines”–a tool that would actually be of use to a judge making a custody decision.

This sort of venture wouldn’t be new in Minnesota.  In 1999, the Minnesota Supreme Court Advisory Task Force on Visitation and Child Support Enforcement created “A Parental Guide to Making Child-Focused Parenting Time Decisions,” to help judge’s better apply the law to individual families.  The Guide is now nearing its sweet sixteen, and is certainly in need of some updating when compared to more recent attempts by other states.

Unfortunately, the revised Best Interest Factors provide nothing like the sort of guidance courts will need if we expect to see real changes in how custody and parenting time decisions are made.

And I suspect these seemingly radical revisions to the law will have only a very modest impact on actual custody outcomes.

The takeaway: the path to progress is through education not legislation, and this bill fundamentally misses the mark.

Parting Thoughts

All and all, the Dialogue Group’s efforts are a mixed bag. But one that will dictate the legal destinies of families probably for decades to come.

The changes are neither wholly good, nor wholly bad. But to the extent they all become law this session, they should be only a starting point for efforts to improve our family courts, not a denouement.

Here’s hoping.

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