On May 14, 2015, Governor Dayton signed SF No. 1191 (now Minnesota Session Laws chapter 30) followed just over a week later by SF No. 1458 (now Minnesota Session Laws chapter 71).

And just like that, the landscape of Minnesota’s custody and child support laws will never be the same, representing probably the most ambitious overhaul of Minnesota’s family law statutes in decades.

So ambitious in fact, that these new laws (clocking in at over 30 pages) are too much for any one post. I’ve done some marathon blogging in my day, but we’re talking Infinite Jest meets Carl Sandburg’s unabridged biography of Lincoln.

I just don’t have it in me.

My guess is neither do you.

So instead I’ve decided to tackle our new laws piece by piece in a series of posts (at least three, possibly more) over the next few weeks.

And having only just celebrated our men and women in uniform on Memorial Day, it seems fitting to begin with the newly enacted Uniform Deployed Parents Custody and Visitation Act.

A National Movement

While most of the legal changes from this session were unique to Minnesota (and its ad hoc Custody Dialogue Group), the Uniform Deployed Parents Custody and Visitation Act has its origins with the National Conference of Commissioners on Uniform State Laws.

Responding to a variety of concerns about the treatment of deployed or deploying parents in child custody matters and an unpredictable mish-mash of state family law regimes, the Commissioners sought to create an act that would balance the “rights of the service member, the other parent, and above all the best interest of the children involved,” while providing predictability and uniformity from state-to-state.

In essence the act seeks to ensure that deploying parents aren’t penalized for their service while being sensitive to the impact deployment unavoidably has on the parent and child who stay behind.

The result was the Uniform Deployed Parents Custody and Visitation Act, which gained approval as a model act in 2012.

For more on the reasoning behind the bill, I’ll defer to Rep. Lesch (the bill’s sponsor) during his testimony.

Since 2012, the act has been approved in 9 states (including Minnesota) with legislation pending in South Carolina.

Understanding the UDPCVA

Stripped to its essentials, the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) aims to address the myriad parenting complications faced by divorced and separated service members when they deploy. Among the most significant components of the bill are an absolute prohibition on entering a permanent custody order while a service member is deployed (temporary orders are acceptable provided they don’t run afoul of the Service Member’s Civil Relief Act) as well as a specific best interests factor that prohibits a court from considering “only a parent’s past deployment or possible future deployment in determining the best interests of the child.” (More on that below.)

Beyond these more general protections, the Act provides streamlined procedures for entering parenting agreements, expedited court involvement where agreements can’t be reached, and unique forms of relief to allow service members to stay connected with their children while deployed.

I am/My Client is Being Deployed! How Does This Work?

When a service member learns of her deployment, she must provide notice to the other parent within seven days to the extent possible.  Each parent is then required to provide a plan for temporary custody and parenting time arrangements during deployment, under pain of a potential award of attorney’s fees.

If the parents are able to reach a temporary agreement, they need only reduce it to writing, sign it, and  file it with the Court without many of the formalities that accompany a stipulated order, and apparently without any need to have the agreement approved by a judicial officer. (Interestingly, the act requires the agreement to be filed with the Court “within a reasonable time,” but is silent as to what consequences might result from a failure to timely file.)

Where parents find themselves unable to agree, the Act mandates an expedited process for hearing disputed issues, with an evidentiary hearing to be held within 30 days of filing a motion or initiating an action, an order to be issued no more than 30 days from the evidentiary hearing, and a process for taking testimony by electronic means. For those unfamiliar with our court system, this is something approaching lightning speed.

Most interesting, perhaps, are the unique forms of relief available to deploying parents that aren’t often seen in your average custody case, namely the ability to temporarily transfer some or all of your parenting rights (think legal custody, physical custody or parenting time) to a non-parent.

In essence, the Act legislatively adopts a theory of delegable parental rights already approved by courts in several states: the notion that a deploying parent may (at least temporarily) transfer her parental rights without running afoul of the constitutional protections afforded to the other parent. See McQuinn v. McQuinn, 866 So.2d 570, 573-74 (Ala. Civ. App. 2003); In re Marriage of DePalma, 176 P.3d 829, 833 (Colo. App. 2007); In re Trotter, 829 N.W.2d 191 (Iowa Ct. App. 2013); Faucett v. Vasquez, 984 A.2d 460 (N.J. Super. Ct. App. Div. 2009).

As described under the Act, this temporary delegation or transfer of “caretaking or decision-making authority” (legal custody,physical custody, and parenting time) to a non-parent can take three forms:

  1. A deploying parent can, by court order or agreement, grant their parenting time to a non-parent with whom the child has a “substantial relationship.” Even in the absence of a permanent parenting time order, the Court can look to “the amount of time the deploying parent habitually cared for the children before being notified of deployment,” and grant that time to a non-parent.  All subject to best interests considerations, of course.
  2. As an alternative (or in addition to) granting a deploying parent’s parenting time (or “care taking authority” under the terms of the act) to a non parent, the Court may also “grant limited contact to a non parent” family member or other person with whom the child has a significant relationship. While the Act is phrased in terms of grants of limited contact to a non parent (singular) there’s no obvious prohibition on a service member requesting multiple persons be able to exercise limited contact at different times. And, as distinct from the delegation of “caretaking authority” (read: parenting time) above, the Court is required to grant limited contact upon request by the service member unless the other parent can demonstrate it would be contrary to the child’s best interests. Limited contact can also be granted to a broader class of non parents, including any family member of the child (regardless of the prior relationship) and non-family members with whom the child has a “close and substantial relationship.”
  3. Finally, a court may grant a non parent part of the deploying parent’s “decision-making authority” (read: legal custody), to make decisions for the child during deployment, though only if the deploying parent is unable to exercise her legal custody rights, and the grant is in the child’s best interests.

Regardless of the rights granted to a non parent, the act provides these third parties with the ability to enforce their rights in Court for the duration of the deployment, while making clear that the grant “does not create an independent, continuing right to caretaking authority, decision-making authority, or limited contact to an individual to whom it is granted.” But more on that below.

Once a temporary order has been entered, it may be modified during the deployment on a simple best interest standard (again consistent with the Service Member’s Civil Relief Act), with the exception of grants of limited contact, which must be terminated at the deploying parent’s request.

Upon return from deployment, the deploying parent must notify the other parent of his or her return.  The parties may then agree upon their own termination date, or the agreement or order automatically terminates within 60 days of notification.  During that time, either parent may move to modify the pre-existing custody arrangement (which will resume at the end of the 60 day period) under the same standards applicable to other custody proceedings. See Minn. Stat. §§ 518.175, and 518.18.

Limitations, Loopholes and Other Caveats

While the UDPCVA goes a long way to provide new and more flexible solutions for military families during deployment, some of the hardest questions to answer are how it will interact with Minnesota’s pre-existing body of custody laws.  While the Act does the most to protect divorced or separated parents already subject to a permanent custody order, its safeguards are noticeably weaker for families that don’t fit this mold.

The Post-Deployment Baby, Never-Married Parents, and the Problem of Derivative Rights

Take, for instance, never-married parents who haven’t established formal custody or parenting time arrangements for their child. Because the Act operates under a theory of delegated parental rights during deployment, there have to be some pre-existing rights to delegate.  But where a never-married mother retains full rights to legal and physical custody by operation of law, the question is muddier.

Take the following hypothetical (or potential law school exam question):

John and Jane dated for nine months, but never married. At the end of their relationship, Jane became pregnant and gave birth to a son, Jake.  Because of conflict with Jane, John was able to visit Jake only irregularly during his first year, and Jane refused to allow John’s parents to visit Jake, reasoning that they were largely to blame for the break-up.  Shortly after Jake turns one, John received orders to deploy.

What are John’s options under the UDCPVA?

Well…John doesn’t have any right to legal or physical custody that can be granted to a third-party, so a grant of caretaking or decision-making authority to John’s mother is out.  Because of Jane’s objections, Jake wasn’t able to “habitually” exercise parenting time with his son, so that avenue is closed as well. At best, John could ask the Court to grant his mother (or other relatives) limited contact, though since Jake has never met his grandmother (because of Jane’s objections) there may be barriers there as well.

If you want to make the hypothetical harder, imagine that Jake is born after John deploys, or that after limited contact is ordered or agreed upon, Jane relocates to Missouri to be closer to her family (an act that arguably wouldn’t be barred by Minn. Stat. § 518.175, subd. 3 preventing unilateral out-of-state moves after entry of a permanent parenting time order, see In re Kremer, 827, N.W.2d 454 (Minn. Ct. App. 2013)).

The point being that with more than half of American children living in non-traditional families,  John’s problems are hardly unique.

Pre-Existing Custody Orders

The other group that may feel somewhat left behind by the UDPCVA are parents with pre-existing custody orders already addressing deployment.

Under the terms of the new Act, a prior order addressing custody and parenting time during deployment “is binding on the court unless circumstances meet the requirements…for modifying a judicial order regarding [custody or parenting time.] In other words, if a Court has already put in place a prospective plan to be implemented in the event of deployment, that plan governs unless a parent can demonstrate circumstances justifying modification under Minn. Stat. §§ 518.175, and 518.18. That’s a tough standard.

(As an aside, it’s worth mentioning that orders in this vein might be somewhat suspect, given the problems inherent in prospective parenting time changes and speculating as to a child’s future best interests. See  Wilson v. Wilson, A09-1386 (Minn. Ct. App. June 15, 2010) (reversing prospective parenting time expansions where the automatic increases were speculative in the absence of particularized findings); but c.f. In re the Matter of Kish v. Wirth, A14-0448 (Minn. Ct. App. July 14, 2014).)

Third-Party Custody

Finally, both deploying and non-deploying parents have good reason to worry about how the rights of non-parents under the UDPCVA will align with Minnesota’s third-party custody statutes (found in chapter 257C.)

While the Act is clear that grants of custody or access rights to non parents “terminate…after the return from deployment” and “does not create an independent, continuing right to [custody or visitation],” the Act doesn’t prohibit access or custody granted during deployment from being used later as the factual basis in a claim for third-party custody or visitation. Indeed, for children under three, a non parent need only provide six months of care in order to qualify as a potential de facto custodian. And grants of authority under the UDPCVA are not specifically excluded from the definition of “de facto custodian” (unlike standby custodian designations or custody consent decrees). See Minn. Stat. § 257C.01, subd. 2(d).

Adding to these complications, the Act makes no mention of how competing requests for visitation or custody brought by grandparents or other non parents should be evaluated when combined with a deploying parent’s motion under the UDPCVA.

So if a deploying Mom wants to grant custody to her mother while she’s on deployment, but Dad’s parents want to exercise visitation with the child while Mom’s away (maybe because Dad isn’t only minimally involved), how do we reconcile grandparents’ rights to seek visitation with Mom’s powers under the UDPCVA?

I don’t pretend to have an answer.

A Not-So-Uniform Act

Beyond these particular concerns, we should also be mindful that for all its pretensions to uniformity, Minnesota’s version of the UDPCVA provides weaker protections than those intended by the Uniform Law Commissioners.

Nowhere is this more apparent than in the language the Act adds to Minnesota’s best interest factors.

As originally conceived, the UDPCVA reads:

In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent’s past deployment or possible future 10 deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent’s past or possible future deployment.

As the drafters comments make clear, the language was intended to “[G]uard against the possibility that courts will use past or possible future deployment as a negative factor in determining custody by service members without serious consideration of whether the child’s best interest was or would be truly compromised by such deployment.”

Of particular import is the use of the term “significant’ which, the drafters explain, “is meant to exclude the court’s considering trivial impact of a parent’s deployment, such as the need to enroll a child in a different school. Under this standard, the court may only consider impacts that are material or substantial.”

But compare this to Minnesota’s language which only provides:

[A] court may not consider only a parent’s past or possible future deployment in determining the best interests of the child.

So, yes, a court can’t use deployment as the only factor, but when would that ever happen? Almost certainly, a decision disfavoring a service member parent would take the form of a number of other best interest findings, though whether those findings would meet anyone’s definition of “significant,” is an open question. The result is that Minnesota’s protections are notably weaker than what the Act intended to provide, and perhaps so weak as to be almost unenforceable.

Minnesota’s Act further dilutes the model act by restricting which non parents can be granted caregiving or decision-making authority. Under the model, authority (equating to custody or parenting time) may be granted to a relative or other non-parent with a significant relationship with the child. Minnesota’s act removes the disjunctive, requiring any non-parent granted caretaking or decision-making authority to have a “close and substantial relationship with the child.”

While I’m not unsympathetic to the reasoning behind this change, it will quickly force the question of how much contact is required to form a “close and substantial relationship.” What about grandparents that visit a few times a year and call regularly? What if the other parent actively prevented a close and substantial relationship from forming? By removing an automatic inclusion of family members, a court will need to make these decisions on a case-by-case basis with some grandparents meeting the test, while others fall short.

Parting Thoughts

Despite all the complications accompanying the Act, I don’t mean to call into question the very real need for exactly the sort of statutory fix it provides.  Minnesota’s adoption of the UDPCVA is almost certainly a good thing, though we undoubtedly have changes to make and lessons to learn. That’s hardly anything new.

But for now, these are lessons for another day and a future post.

‘Til then.

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