On Monday, the Court of Appeals issued a published decsion in Le v. Holter, –N.W.2d– (Minn. App. 2013), A12-2011 (November 4, 2013) stating that a district court is not required to hold an evidentiary hearing before deciding a parent’s request to move-out-of state with a child. But while Le got it right (or so I’ll argue), it also avoided a more pressing part of the same question.
Le v. Holter (A Brief Synopsis)
In Le, Appellant (mother) requested permission to move with the parties’ children from Minnesota to California to in the hopes of finding better employment and being closer to her family. Respondent (father) opposed the move. Analyzing the best interest factors for out-of-state moves, the district court denied Appellant’s request to move based on the affidavits and motion papers submitted. See Minn. Stat. 518.175, subd. 3 (setting forth the best interests factors for an out-of-state move). Perhaps significantly, Appellant did not request an evidentiary hearing in her motion, but on appeal she cited the court’s failure to hold an evidentiary hearing as error.
The Court of Appeals affirmed the district court’s decision–including its failure to hold an evidentiary hearing–reasoning that family court motions are typically submitted without oral testimony, and that the relocation statute (518.175, subd. 3) lacks any requirement that the court hold an evidentiary hearing. The Court similarly declined to extend the evidentiary hearing procedures that accompany motions to modify custody to a parent’s request to move out of state.
The Le decision undoubtedly got it right on the law. Since Minnesota’s legislature amended the relocation statute in 2006, the old procedures regarding evidentiary hearings for out-of-state moves no longer apply, and there is nothing in the statute to suggest that they should. (The pre-2006 standard and evidentiary hearing requirement can be found in Benson v. Benson, 346 N.W.2d 196 (Minn. App. 1984).) But in reaching the right answer, Le (rightly) avoided the more interesting question: what if the proposed move would have altered parenting time such that a different portion of the statute (one that does require an evidentiary hearing) were implicated?
Out-of-State Moves and Parenting Time Restrictions
Unlike requests to move out-of-state, the Court must hold an evidentiary hearing before granting a requests to restrict parenting time. See 518.175, subd. 5. Even after an evidentiary hearing, parenting time can only be restricted where the child is physically or emotionally endangered or where a parent has “chronically and unreasonably” failed to comply with court-ordered parenting time.
Though the appellate case law on this issue proves a bit dicy, the primary difference between a “restriction”–which warrants an evidentiary hearing–and a “modification”–which does not and can be made without any showing of endangerment–is usually one of degree. However, “substantial” changes to the schedule are typically evaluated as “restrictions” rather than “modifications.” See Dahl v. Dahl, 765 N.W.2d 118 (Minn. App. 2009).
So without belaboring the point: restrictions (i.e. substantial schedule changes) require endangerment plus an evidentiary hearing; modifications (i.e. less substantial changes) require only a showing of best interests without the need for an evidentiary hearing.
But how should courts evaluate a request to move out-of-state (which Le tells us doesn’t require an evidentiary hearing) where the move results in a substantial change to the parenting time schedule (which does)? Given the interplay of statutes involved, I think this is the more interesting question. And though the facts in Le didn’t raise the issue, the decision comes right on the heels of another opinion that at least hints at an answer.
Enter Brevik v. Brevik, A12-2242 (Minn. App. Oct. 7, 2013), an unpublished decision from the Court of Appeals just last month.
In Brevik, the district court granted Respondent (mother) permission to move with the children from Moorhead to Rochester (an instate move, but with a five hour drive), and reduced Appellant’s (father’s) parenting time from slightly more than 40% before the move to just over 25% after the move.
(Side Note: For those outside Minnesota family law practice, percentages of parenting time usually refer to the percentage of overnights that each party parents the child, thus 50% parenting time would be 182.5 overnights with the children per year. As a practical matter, the .5 just seems to work itself out).
So, 40% reduced to 25%–a reduction of almost half. Intuitiviely, I share with the Appellant in Brevik the sense that this looks more like a restriction than a modification, and that an evidentiary hearing should be held. But the Court of Appeals thought otherwise. Citing dicta in the 2010 case of Hagen v. Schirmers, 783 N.W.2d 212 (Minn. App. 2010), the Court of Appeals found the drop from 40% to 25% to be a “reasonable modification in parenting time caused by a good-faith” move, and therefore not a restriction.
On first blush, I confess that I’m at a bit of a loss as to why it should matter that the modification is “reasonable” or was “caused by a good-faith move.” Where parenting time is cut almost in half, the additional adjectives seem to miss the point. (I also doubt that the Appellant in Brevik saw this as a “reasonable” modification.) In support of this reasoning, the Court of Appeals cited the 1986 case of Danielson v. Danielson, 393 N.W.2d 405 (Minn. App. 1986) for proposition that “reasonable” changes in parenting time resulting from a move out-of-state are acceptable, so long as the new parenting time schedule is “reasonable and adequate to maintain [the] relationship [with the other parent].” In applying Danielson, the Court distinguished another case, Clark v. Clark 346 N.W.2d 383 (Minn. App. 1984), which found error in a trial court’s “slow erosion” of parenting time following a move out-of-state (from 14 weeks per year to 5.5 weeks per year) without a finding of endangerment.
While I am tempted to argue that the parenting time reduction in Brevik looks far more like the “restriction” in Clark rather than the “modifciation” in Danielson, the analysis in Brevik also misses a broader point.
Indeed, the misstep in Brevik‘s analysis is that the Danielson case on which it relies pre-dates the legislature’s amendment to the relocation statute in 2006. Brevik thus relies on an outdated legal standard to support its conclusion that reasonable schedule changes resulting from moves are, almost by definition, “modifications” rather than “restrictions.” Prior to 2006, courts granted custodial parents the presumptive right to move out-of-state, and the parent opposing the move carried the burden to show why it should not occur. In fact, Danielson cites this same standard in support of its holding, implying that because courts must show deference to a custodial parent’s right to relocate, they should also faciliate that right by making “reasonable” parenting time modifications.
Of course, the pre-2006 presumption no longer exists, and the parent requesting an out-of-state move now bears the burden of proof. It seems to follow, at least to me, that the moving parent should similarly bear the burden of creating a non-restrictive parenting time schedule.
Of course, this line of inquiry points directly to the real problem with Brevik‘s analysis. The use of the labels “reasonable” or “unreasonable” strikes me as ducking the real issue, namely: whether or not the reduction in Appellant’s parenting time was significant enough that it constituted a restriction. The entire issue of whether or not a schedule change is “reasonable” appears to be a red herring distracting attention from this central inquiry.
Certainly, restrictions of parenting time may be reasonable–there may be very good reasons that support a restriction of time. But the fact remains that even a reasonable restriction remains a restriction, and it should be evaluated by the Court as such. Our statute does not make an exception to its procedural and substantive requirements simply because a parenting time restriction might be “reasonable.” The holding in Brevik seems to miss this point , and does so by relying on case law with questionable applicability.
Reading Le and Brevik together might lead one to conclude that where one parent seeks to move out-of-state, the other’s parenting time with the children can be rather remarkably curtailed without any showing of endangerment or any requirement of an evidentiary hearing. In what has turned into a rather lengthy post, I would argue that this is the wrong answer. Our statute provides procedural and substantive protections against the restriction of parenting time, and those protections are not lessened simply because one parent is leaving the state. Thankfully, the question is not settled. Brevik remains an unpublished (thus non-binding) case about an in-state move, while Le never reached the issue at all because the Court denied Appellant permission to move. Indeed, it may be that later courts will find Brevik‘s analysis wholly inapplicable because the court never had to consider the out-of-state relocation statute as part of its analysis. However, this issue is sure to surface again, with no clear answer as to how the Court will rule.