Child-custody bill was problematic

  • Article by: MICHAEL D. DITTBERNER and SUSAN M. GALLAGHER
  • Updated: June 12, 2012 - 8:08 PM

In our experience, the most workable and durable custody and parenting time arrangements result when parents reach agreements themselves.

This session, the Legislature passed HF322, a bill that increased the "floor" of parenting time for each parent in divorce cases from 25 percent to 35 percent. Proponents were clear that their purpose was to further their goal of guaranteeing equal parenting time in virtually all family-court cases. Gov. Mark Dayton recognized the problems in this approach and wisely chose to not sign the bill.

A recent commentary ("Kids in the balance," June 1) authored by three of the bill's strongest proponents -- state Reps. Peggy Scott and Tim Mahoney, and Molly Olson of the Center for Parental Responsibility -- merits a response. While we respect their passion and commitment, we respectfully disagree that their bill was in the best interests of children.

The authors claimed that the Minnesota Court of Appeals ruled "that joint physical custody and equal shared parenting is not allowed except in rare circumstances." In fact, the law is just the opposite.

In a 2005 case, Schallinger vs. Schallinger, the Minnesota Court of Appeals declared that there "is neither a statutory presumption disfavoring joint physical custody, nor is there a preference against joint physical custody if the district court finds that it is in the best interest of the minor child."

We often see decisions that joint custody is the most appropriate arrangement, and our experience is confirmed by research conducted by Olson's organization. The Center for Parental Responsibility found that only 1 percent of cases were decided by a judge.

Further, its research shows that fathers were awarded at least 45 percent parenting time in almost half the cases. While there are individual cases in which one party perceives that he or she has been treated unfairly, there is no hard data to show that those outcomes reflect a majority of cases or that the results would have differed with an increased presumption.

Moving the presumptive parenting time minimum from 25 percent to 35 percent may seem innocuous. But in practice it would adversely affect many families, and the most harmful impacts would occur in cases where it is least likely to succeed.

In our experience, the most workable and durable custody and parenting time arrangements result when parents reach agreements themselves. The increasing use of mediation and early case management in Minnesota's family courts are designed to empower parents to make decisions that are in their child's best interests. A presumption, on the other hand, creates a one-size-fits-all solution dictated by government rather than one accomplished cooperatively by parents.

An increased presumption would most often apply where it will do the most damage to children: in those cases where parents cannot agree on a custody arrangement. Although joint physical custody or nearly equal parenting time has become more frequent, it is inappropriate in many cases, such as those involving nursing babies, small children, domestic violence, high conflict and disengaged parents. These cases require judicial intervention. It is absolutely critical that judges retain the ability to look at each child's circumstances and unique needs.

All of the major Minnesota family-law professional organizations opposed HF322 because they believe that the children's best interests should govern how child-custody arrangements are decided. These same organizations supported previous reforms that reduced family-court litigation, including expedited processes for child support, early case management in divorce cases and new rules that make it easier to navigate family court without lawyers. In our view, good public policy should encourage parental involvement but also emphasize children's best interests and protect victims of violence.

Dayton has urged collaboration in the upcoming 2013 session on a bill that improves the lives of children in the family-court process. This issue understandably stirs passion and controversy. Successful collaboration will require mutual respect of views, dispassionate and objective analysis of the facts, and a common focus on the needs of the child.

We and the groups we represent are committed to working with all three branches of government --the Legislature, the governor and the judiciary -- to answer the governor's call.

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Michael D. Dittberner is an Edina family-law attorney and is the legislative chair of the Minnesota Chapters of the American Academy of Matrimonial Lawyers and the Association of Family and Conciliation Courts. Susan M. Gallagher is an Eagan family-law attorney and is the chair of the Family Law Section of the Minnesota Association for Justice.

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