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Custody Law Overhaul – Biggest Changes In 30 Years

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2015 Changes to Custody Laws

The Minnesota legislature made huge changes to the laws governing custody and the laws take effect August 1, 2015. The changes endeavor to bring Minnesota custody law into the 21st century.   Among these are changes to the “best interest standards” (Minn.Stat.§518.17).   These are the factors used by custody evaluators to make recommendations, lawyers to prove their cases and judges to render their decisions.

The “best interest standards” have been given a substantial face-lift.  The new factors modernize the considerations in determining physical custody and visitation n/k/a parenting time.  The most significant changes are as follows:

  1. There were 17 factors to consider when addressing custody. Thirteen factors addressed issues of sole physical custody and 4 addressed joint custody.  These have been modified to 12 factors most of which incorporate new language and considerations with the language of the previous factors or replace them entirely.

    The factors no longer separate considerations for sole custody versus joint.  The new law endeavors to focus the on the needs of the children and the ability of each parent to meet those needs individually and as a parenting unit and away from the primary parent concept.

  1. In examining the needs of the child the new Minn.Stat.§518.17 subd.1(a) introduces the new provisions by providing “In evaluating the best interests of the child for the purposes of determining issues of custody and parenting time, the court must consider and evaluate all relevant factors, including:” The law then addresses the 12 factors.Factors 1 focuses on consideration of the child’s “physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development.  The language of factor 2 addresses “any special medical, mental health, or educational needs” that the child may have that may require special parenting arrangements or access to recommended services.”

    Factor 4 redefines the impact of domestic abuse and focuses where the abuse occurred, the “nature and context of the domestic abuse” and “the implications of the domestic abuse for parenting and for the child’s safety, well-being and developmental needs.”

    In factor 6, the prior concept of a “primary parent” has been replaced with consideration of “the history and nature of each parent’s participation in providing care for the child.”

    Several of the prior factors have been combined into factor 7 to include a more thoughtful concept of parenting and examine “the willingness and ability of each parent to provide ongoing care for the child” that will “meet the child’s ongoing developmental, emotional, spiritual and cultural needs”.  Also included is a parent’s willingness and ability “to maintain consistency and to follow through with parenting time.”

    Another change is the modernized concept that includes consideration of “the willingness and ability of parents to cooperate in parenting, maximize the sharing of information and minimize exposure of the child to parental conflict”, including the utilization of “methods for resolving disputes regarding major decisions concerning the life of the child.”

  1. Stat.§518.17 subd.1(b) lists do’s and don’ts for a court in making a decision. These will also impact custody evaluator recommendations which courts typically consider in making determinations of custody. Some were previously in the law while others are new.The provisions require the court to make detailed findings on each of the 12 factors in Minn.Stat.§518.17 subd.1(a) based on the evidence and explain how each factor impacted the decision of the court.  This has been the implicit duty of the court but it is now explicit.  The law at (1) states that the trier of fact “may not use one factor to the exclusion of all others, and the court shall consider that the factors may be interrelated.”

    A new provision (3) requires the court to take into consideration “that it is in the best interests of a child for a parent to promote the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents.”

    There is a new (rebuttable) presumption in (3) that provides for the court to “consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise.”  It is also noted in the law that in assessing whether the 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 with love and guidance, and that these may differ between parents and cultures.”

    In provision (8) there is a clear statement that “Joint physical custody does not require an absolutely equal division of parenting time.”  This statement takes old case law and codifies it into statutory language.

  1. A new section has been added to Minn.Stat.§518.17, Subd. 3(b). (Custody Orders). This new language makes the provisions of Subd.3a. a mandatory inclusion in all custody orders, which includes the Judgment and Decree of divorce.This new language of Subd.3(b) is followed by Minn.Stat.§518.17, Subd.3a.(Contents on Notice).  It takes the prior language that gave both the custodial and non-custodial parents the right to have access to certain information about their child such as educational (including progress in school, attendance), medical/dental, religious training, police reports, and health insurance information and simply places the language into a separate subsection that is now a required inclusion into each custody order (which includes the Judgment and Decree of divorce) in the form of a Notice to parents.
  1. A new provision, Minn.Stat.§518.17 subd.1(c) provides that a Court may not consider only past or possible future deployment of a service member parent in determining a child’s best interests.There is also a new section that will be added to the law as Minn.Stat.§518.E that will be known as the Uniform Deployed Parents Custody and Visitation Act (UDPCVA). This will address many issues regarding parenting time and custody for those who are serving in the Armed Forces of the United States.
  1. In Minn.Stat.§518.175, subd.1(g) the law has been clarified to provide that the presumption that parents are entitled to minimum of 25% parenting time with their child, replacing the law that provided for “at least 25%”. The former law was often seen as a ceiling not a floor and this law clarifies that the 25% is not set as a maximum but rather as a minimum.
  1. The provisions of Minn.Stat.§518.175, subd. 6 were updated regarding compensatory parenting time.  The statute’s prior language now includes specific authorization to grant compensatory time both in initial instances and repeated instances where the child has not been made available for parenting time.  The law now provides penalties and sanctions (attorney fees and civil penalties) where parenting time continues to be denied while allowing for the defense that the denial was necessary to protect the child.

These changes are big and will be the subject of CLE seminars during the next year.  Anyone who works in the area of child custody needs to be aware of these changes including custody evaluators, alternative dispute resolution providers, lawyers, judges and other triers of fact.   Parents need to seek out the services of attorneys and other advisors who take the time to become familiar with the law.  The next few years will be important in addressing how the laws are implemented by the lower and appellate courts.  These new laws are game changing and important in protecting children and respecting the rights of all parents to participate in the lives of their children after separation and divorce.