After 3,300 words on Minnesota’s new child custody laws, you might think I’d have nothing left to say.

Or maybe you were just hoping.

But there’s a lot that remains uncertain in our new custody laws, not the least of which are new considerations that seem to set a strong, legislative policy in favor of shared-parenting arrangements. I promised in my last post to give these portions of the new law the attention they deserve.

But with no case law or formal guidance, I have to offer one caveat: no one really knows.

While there are no lack of opinions as to what some of this new language means, it’s almost destined to be applied differently by different decision-makers.  At least for the immediate future.

So with only the text of the law to go on, a lot remains unknown, and perhaps even unknowable.

With that said, here it goes.

Not Your Father’s Joint Custody Bill

For years proponents of mandatory shared parenting arrangements sought to create a presumption of joint physical custody and equal parenting time for divorced and separated families.

In fact, just in the past few years, Minnesota has seen two failed (but very serious) runs at creating a legal default of equal time including a joint physical custody presumption in 2007, and an equal parenting time mandate in 2011.

With each failed attempt, reform-minded supporters returned, demanding the creation of legislative presumption to counter-balance (perceived) barriers to joint custody and equal parenting arrangements.

So when many of these same stakeholders lined-up in support of Minnesota’s recent child custody reforms, it may have come as a surprise that the new laws maintained Minnesota’s formal non-position neither for nor against joint physical custody, and kept the same presumptive minimum parenting time levels established in 2006.

At least formally.

Because while our new custody laws stop (far) short of compulsory joint physical custody or a mandate for equal parenting, they include three meaningful gains for shared-parenting arrangements.

Meaningful enough, at least, I’d go so far as to talk about them as shared-parenting presumptions.

Maximizing Time, Minimize Objections.

Of course, for all my web-traffic-seeking rhetoric, it’s important to flag that none of these “shared-parenting presumptions” explicitly refer to themselves as presumptions.  In fact, the first arguably shouldn’t even be called a presumption at all.

It’s a factor.

Or so it claims.

More specifically, it’s the tenth factor in our newly revised best interest standard which reads:

[T]he benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent.

And while it’s labeled a factor, factor 10 seems unlike many of its 12 counter-parts, in that it more closely resembles a substantive statement of legislative policy: a policy favoring shared-parenting arrangements.

Here’s what I mean:

At their core, the best interest factors are factual considerations meant to inform a court’s determination of custody and parenting time issues.  They go directly to the question what sorts of evidence a court should consider (or not consider) in setting schedules and allocating decision-making authority.

They’re the ingredients of a good child custody decision, if you will.

Things like the child’s needs and preferences or the parent’s abilities and participation.  All of which, again, are factual inquiries a court must make and then weigh as it determines what arrangement will best suit this family.

There’s nothing in this factor that suggests the Court should come to any particular conclusion, only that they must ask the question and consider the answer.

Enter Factor 10: “The benefit to child in maximizing parenting time with both parents…”

But wait, are there really any facts to be found here?

The statute doesn’t read “any benefit to the child in maximizing parenting time…,” or  “if there is a benefit,” or even just “a benefit…” it reads “the benefit.” Definite article. Where “the benefit” doesn’t seem to be something found (or not) by a Court, but simply presumed as a matter of law.

And if the existence of the benefit comes predetermined, it’s not entirely clear how this factor should be weighed. Certainly it doesn’t decide the matter, or mandate equal parenting time.  After all, the Court “may not use one factor to the exclusion of all others.” But it almost can’t help but serve as a nudge (shove? full court press?) towards more balanced time sharing.

Which is why, though the statute includes this language as a “factor” to be considered and weighed, it could be read as functioning more as a mini-presumption: directing (or re-directing) the Court towards shared-parenting arrangements even as it declines to mandate them.

Or, that’s one argument.

But it’s hardly the only one.  It may not even be the most persuasive.

Because while “the benefit” seems fairly suggestive, we should be cautious before placing too much emphasis on one definite article.

Think, for example, of factor 12 in our old best interest factors:

[T]he effect on the child of the actions of an abuser…

No one would say (or at least none of us did) that the presence of a definite article presumed that all children were effected by the actions of an abuser (or that they were effected in the same way).

Similarly, (old) factor 8:

[T]he permanence, as a family unit, of the existing or proposed custodial home

The factor didn’t presume the existence of “permanence,” or that permanence meant the same thing for every family.

Or, turning to the new factors:

the willingness and ability of parents to cooperate in the rearing of their child

I haven’t heard anyone argue that the law creates a rebuttable presumption that all parents are equally willing and able to cooperate in raising their children.

In fact, of 13 former best interest factors, 12 began with definite articles without legally presuming the existence of the modified noun. 7 out of the 12 new factors begin the same way.

Why then should “the benefit” be read as presuming the existence of a universal and uniform benefit, rather than simply directing the Court to consider whether any such benefit exists?

After all, factor 10 is only a factor.  It has to, by statutory mandate, be weighed against and in the context of it’s 11 siblings.  And while the drafters didn’t qualify factor 10 with an “if” or an “any” why should a definite article create any more of presumption here than elsewhere?

Put slightly differently, would there be anything wrong with a Court simply finding, in any given case, that there simply isn’t a benefit to maximizing time or a detriment to limiting time? Or that whatever benefits exist to maximizing time (or detriments to minimizing time) can be fully realized on a less than equal schedule?

Just like our former domestic abuse factor, could “not applicable” be enough in some (or most) cases?

That’s the debate. And one I suspect won’t be resolved until our appellate courts have their say.

For now it may be enough to say that factor 10 may not be quite the shared-parenting presumption some thought.

A Presumption of Shared-Parenting?

But as equivocal as the first shared-parenting presumption may be, the legislature certainly knows how to make a statement of policy when it chooses:

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.

I’ve called it the presumption that dare not speak its name.  And while this language doesn’t, strictly speaking, presume any particular custody outcome, it is just about as unambiguous  a statement of shared-parenting policy as our law has seen.

Assuming, of course, that the shared-parenting is safe, stable, and nurturing, and promotes healthy growth and development.

Adjectives!

Who knew this post was going to seem so much like a middle school English lesson? But that’s precisely the tension point  in this new presumption.  While promoting healthy growth and development through relationships with both parents is mandatory, Minn. Stat. § 645.44, subd. 16, it’s only mandatory where those relationships are safe, stable and nurturing. All factual matters a court may (or may not) find.

Nurturing? It’s Natural.

Of course, it makes good sense to expect that parental relationships be safe and stable in order to be in a child’s best interests.  But whether or not a relationship is nurturing may be far harder to measure.

A plain-meaning approach to the term hardly adds clarity (“care for and encourage the growth or development of.”) And so a seemingly conclusive presumption is left to hinge on a frustratingly vague term.

Until shared-parenting presumption number three:

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.

If adjectives take some of the force out of the presumption above, this principle helps give a bit back–circumscribing the instances in which “nurturing” can be used as a negative for one parent, by creating something akin to a rebuttable presumption that each parent can appropriately nurture their child.

Interestingly, there’s no similar presumption that both parents are “safe” or “stable.” But nurturing–perhaps by virtue of how ill-defined the term is–is expressly precluded from being used as a limiting consideration “unless there are substantial reasons to believe” a parent is not up to the task.

 No Easy Answers.

I opened this post talking about shared-parenting presumptions. But for those who just skipped to the end, don’t let the title fool you.

While our new custody laws help make more room for shared-parenting arrangements, and certainly even may encourage their use in appropriate cases.  It’s far from clear that these new laws contain any like a true shared-parenting presumptions.

More likely, the answer, as always, remains “it depends.”

It depends, first and foremost, on how judges and other decision-makers choose to apply this new statutory language in the absence of any guiding case law.

And, as with any custody matter, it depends most of all on the individual circumstances of each family.

Could the new language tip the scales towards more equal time sharing in some cases?

Sure.

Does it mandate or even presume that children will spend equal time with both parents?

No.

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