Two months into the most dramatic change to Minnesota’s family law in decades, and our new laws are starting to feel like old news.
Sure, sure. Come back when you get word from the Court of Appeals.
Honestly, I can relate.
Because despite pages upon pages of changes, rewrites, and amendments to our custody and child support laws, one clause keeps hijacking the discussion—an addition to Minnesota’s new best interest factors which requires the Court to consider:
[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.
I’ve written about the factor (skeptically) as a shared-parenting presumption. Others have gone further and labeled in a (near) mandate for equal time sharing.
And while there are reasonable arguments for thinking of maximized time as equivalent to equal time, these arguments also miss a sounder and richer interpretation of the statute to the detriment of Minnesota families.
Maximized Time ≠ Equal Time
Simply as a matter of statutory interpretation, we should be skeptical that a new factor requiring Courts to consider the benefits of maximizing time can or should be equated with a requirement that the Court order an equal schedule in all (or even most) cases.
Perhaps one of the great sea changes in family law has been an enhanced appreciation of the vital role both parents play in rearing healthy, happy, well adjusted children. Which is one of the reasons it makes good sense for our Courts—in accounting for children’s needs—to consider any benefits associated with maximizing the time each parent spends with the child, as well as the detriment of limiting the child’s time with either parent.
But the same reasoning doesn’t support the conclusion that an equal schedule will always (or even usually) provide children with the greatest level of benefit. Reflecting on the benefits each parent offers their child is a far cry from a mandate for 50/50 time.
After all, nothing in the statute prevents a Court from finding that all the benefits associated with maximizing time are realized on a less than equal schedule. And, given the deference typically shown by appellate courts in custody cases, could such a finding ever really be an abuse of discretion?
In other words, if Courts simply addressed this factor with:
The Court finds that the benefits of maximizing time including [insert benefits here] are fully realized on the parenting time schedule set forth below.
would they ever be reversed?
Lessons from the Badger State
While Minnesota’s best interest factors are certainly sui generis, in coming to grips with the meaning of our new “maximizing” language, we could do worse than looking to our oft-derided neighbors to the east.
In 2006, the Wisconsin Supreme Court in Landwehr v. Landwehr, 715 N.W.2d 180 (Wisc. 2006), interpreted not dissimilar language in Wisconsin’s custody statute:
The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households
See Wis. Stat. § 767.24(4)(a)2.
Citing this language, the father in Landwehr argued “when both parents are available, willing, and able to accommodate equal placement, and when the parents are located near each other, [statute] mandates equal placement because a child’s time with his or her parents cannot otherwise be ‘maximized.’”
The Wisconsin Supreme Court disagreed.
Instead, the Court held that the unambiguous language of Wisconsin’s mandate to maximize both parent’s time required only that a Court make Father’s time “as great as possible” after considering all the other relevant custody factors under Wisconsin law:
[T]he court must attempt to maximize the children’s time with each parent within the context of the various other considerations the court is instructed to contemplate under [the best interest factors]. The term “maximize” does not supersede the trial court’s discretion to construct a schedule it determines is in the best interest of the child and otherwise in conformity with the intricate dictates of [the best interest standard]
While Minnesota’s statute is hardly identical to Wisconsin’s, the same logic carries arguably even greater force where Minnesota’s language regarding maximization is both stated as a factor (rather than a mandatory “shall”) and specifically made subject to a holistic review of all twelve best interest factors (e.g. “The court may not use one factor to the exclusion of all others.”)
Even more compelling, Minnesota’s revised best interest factors were enacted following a failed attempt to establish a presumptive 35% parenting time floor in 2012. It would be more than a little odd if a presumption of equal time passed so smoothly and with such broad consensus so soon after a more modest proposal was vetoed.
Quality Over Quantity
Beyond the more mundane observation that the terms “maximize” and “equalize” simply don’t mean the same thing, Chief Justice Abrahamson in her concurrence in Landwehr offered an even more child-focused interpretation of Wisconsin’s maximization language that Minnesota should take to heart:
I conclude that …the circuit court shall also “maximize[ ] the amount of time the child may spend with each parent” by setting a placement schedule that considers the actual amount of time the child is likely to spend with the parent. In other words, the circuit court in setting a placement schedule should, in addition to considering all the other factors required by statute, take into account the actual amount of time the child is likely to spend with each parent. Thus the circuit court might consider such matters as the time the child is, for example, in school, or with a caretaker, or asleep, and the times a parent works or is otherwise unavailable to be with the child.
Put another way, in maximizing time, Court’s should look to quality over quantity. They should consider the amount of time a child will actually spend with Mom or Dad, rather than what bed they’ll sleep in at night.
Beyond being an eminently practical and child-focused reading of the statute, it’s also good policy.
Social science continues to suggest that it’s the quality, rather than the quantity, of time that matters most when it comes to parenting. To quote clinical psychologist, Jennifer McIntosh,
Research commentaries on children’s outcomes converge around the importance of parenting and relationship qualities and psycho-social resources above the sheer structure of care arrangements.
Legislating for Shared Parenting: Exploring Some Underlying Assumptions,” 47 Fam. Ct. Rev. 389 (2009).
Likewise, in a chapter from The Scientific Basis of Child Custody Decisions, Michael E. Lamb and Joan B. Kelly review over a decade of research on families and children to conclude:
The clear implication is that active paternal involvement, not simply the number or length of meetings between fathers and children, predicts child adjustment.
Indeed, even as parents devote more hours each week to caregiving than past generations, it’s parental engagement rather than simply parental presence that goes furthest in promoting child well being. See Melissa A. Milkie et al. “Does the Amount of Time Mothers Spend with Children or Adolescents Matter,” 77 J. Marriage & Fam. 355 (2015) (sub. req.)
Ending the Equal Time Myth
Looking to the quality of “maximized time” rather than its quantity is good law, good policy, and good sense.
And while I’m holding out hope, I’m also not holding my breath.
Because beyond how we interpret one clause of one subdivision of one statue, we have to focus on ending the myth of equal time that is trumpeted so loudly to divorced and separated parents. We have to fundamentally change the paradigm that uses “getting equal time” as an anemic proxy for being an equal parent, and replace it with a far more nuanced understanding of what it means to co-parent children in two homes.
Children are not property. A schedule–even an equal schedule–isn’t the same as love and engagement.
Until we stop reducing the richly textured experience of parenting children to fights about time, we won’t recognize the variety of ways in which unique and meaningful parent-child relationships can be maximized, not just on a two-week rotating schedule, but over a lifetime.