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Jason Brown

He writes about family law.

Custody. Let's Ditch the Labels and Talk About Something Meaningful.

Yesterday I was involved in a marathon negotiation session on a divorce that we were otherwise supposed to be trying in Wright County. We started at about 8:15 AM and wrapped up promptly at 7:15 PM.

The ironic thing is that only two issues were on the chopping block – legal custody of the children and the conditions associated with my client’s parenting time.

Eleven hours trapped in a 10x10 artless, windowless conference room with light blue paint, followed by a drive to the UPS Store to secure a notarized signature on the original agreement (court administration had closed hours earlier).

In the parking lot, my client turns to me and says, “They sure don’t portray it this way on TV.” We had a good chuckle.

During the course of our discussions, counsel met with the judge assigned to the case to discuss our progress. When the fact that our clients disagreed about the issue of legal custody was brought to the attention of the court, a common thought was uttered.

“Well, you know, the issue of legal custody isn’t that significant anyway. It doesn’t really amount to much. How often do these types of issues really come up? I would expect that parents would discuss a major medical issue that arose with their children regardless of the label. They’ve already agreed on where the children go to school and decisions about religious affiliation have been made.”

I turned to opposing counsel and said, “You see. It’s no big deal. Your client should just agree and let’s get this done.”

She said, “You’re right. It’s not a big deal. So tell your client to let it go and let’s get this done.”

That was at 1:15 PM.

It really didn’t matter. The court knew it. The other lawyer knew it. I knew it. Many family law attorneys, judges, mediators and evaluators know it.

So why does the legal custody label exist?

The same is true of physical custody. The label doesn’t matter.

In 2007, the Minnesota legislature modified the child support guidelines. Viewed as a rather progressive move, the “new” formula would ignore the physical custody label (sole or joint) in determining support, and simply take into account the amount of parenting time enjoyed by each party. The idea was that parents would stop arguing about labels, and focus on time. Implicit in that concept: the label isn’t important.

Minnesota appellate courts seem to agree. I vividly recall an opinion that “joint physical custody” does not imply equal parenting time. In fact, the appellate judge pointed out, a couple could theoretically have a 90/10 split of parenting time, yet share joint physical custody.  

The same is true of an equal access schedule. Very recently, I appeared in Anoka County on a paternity file, with a history of domestic abuse against our client (mother) by father. The custody statues are rather explicit in acknowledging that if there is a history of domestic violence, joint physical and legal custody are an unlikely outcome.

Presumptively following the statute, the court awarded my client sole legal and physical custody of the infant child. Yet, the judge granted the parties equal parenting time.

I have nothing but the highest respect for the judges referenced anonymously in this post. The issue isn’t their wisdom. The issue is that labels don’t seem to matter. And, they don’t.

Why all the fighting?

I find that many litigants put a stake in the ground on a custody label for the sake of a “win,” not the actual consequences that stem from it. They feel empowered (falsely) by being “the” custodian of the children.

I have a tough time explaining to so many that the focus really should be on the schedule, and the rules of engagement among the parties and the children.

Several years ago, the legislature gave litigants an opportunity to drop their weapons, and craft what is known as a “parenting plan.” These plans focus solely on the schedule, and who assumes what particular responsibilities with regard to the children. No reference to custody. Except…you have to include a label for out of state enforcement purposes. Another fight. We’re not out of the woods quite yet.   

If custody labels really don’t matter, isn’t it time to reconsider their existence?

It seems to me that the legislature has “kind of sort of” gone there. Until they actually pull the plug, however, our limited judicial resources, frail familial relationships, and the savings accounts of parents looking for a fight will continue to erode without cause.

The same 17 factors found within the current custody statute can continue to determine what is best for a child. But, they can be used to require the court, or the litigants, to simply craft a plan for the children - without the need to call it anything.

Same-Sex Marriage : Legal Implications Much Larger Than "Marriage" Statute

Last week, it became readily apparent to me that same sex-marriage will change the way we think as family law attorneys – not only in terms of divorce, but also on peripheral family law issues.

A lesbian couple came in to visit with me concerning adoption. One partner was the biological parent of a child. Father was out of the picture. Mother and mother’s partner wished to have mother’s partner adopt the child. In the old days (we’re there until August 1, 2013), a traditional adoption process would have followed – including a federal background check and lengthy home study with a social worker.

A large light bulb went off. Now that this couple is free to marry, mother’s partner can become a step-parent to the child. The couple can now take advantage of the much simpler process of step-parent adoption in Minnesota.

Not only did I have to retool my thinking on the fly, I also realized that my step-parent adoption intake forms needed to be changed to reflect this new era. The couple and I had a good chuckle over completing our questionnaire that used “husband” and “step-father” as descriptors.

The concept of marriage is defined in Minnesota Statutes Section 517. When Governor Dayton recently signed the marriage equality bill into law, a number of other statutes were implicated – whether in relation to divorce (Section 518), prenuptial agreements (Section 519), step-parent adoption (Section 259), estate planning (Section 524) or criminal defense (Section 609).

Here are just a few of the legal consequences stemming from the right to marry:

- Naturally, when one has the right to marry, one has the right to dissolve the marriage. Same-sex couples now have the ability to utilize the statutory framework found within the existing divorce statutes in terminating their relationship. That framework includes the equitable division (almost always equal) of property acquired during the marriage, and the right to seek spousal maintenance.

- If an individual has the right to marry, they also have the right to execute a prenuptial agreement. Such agreements allow the parties to a same-sex marriage to spell out the rules of financial allocation following divorce, or death, even if contrary to existing dissolution or probate statutes.

- Same-sex couples who marry will find themselves protected under the probate code by standing first in line to inherit in the absence of a will, and through the right to claim the elective share, if disinherited by their spouse.

- In criminal cases, marital privilege precludes a spouse from being forced to testify against the other. Same-sex couples electing to marry will now benefit from that particular privilege.

No doubt, there are many other state statutes affected by marriage being redefined within Section 517 – not to mention federal tax, social security and pension regulations.

As an attorney, it is exciting to jump into a new set of rules and try to sort things out. Given the broad impact of same-sex marriage, that sorting is bound to go on for quite a while.