Tag Archives: Evidentiary Hearing Not Required to Modify Parenting Time

Modifications of Parenting Time

Modifications of Parenting Time

In Dawson v. Taylor, A14-0220 (Sept. 15, 2014), the Minnesota Court of Appeals upheld a district court’s order granting modification of parenting time without an evidentiary hearing. This case involved a child born in 2002 to unmarried parents. The father’s paternity was legally established in early 2005, and the court awarded them joint custody, with the mother having sole physical custody, and a visitation schedule that gave the father parenting time on ten days during a four-week period. In 2013, when the child was about eleven, the mother moved to modify the schedule, requesting a school-year schedule of school nights (Monday to Thursday) with her, with the father having the child at his home for dinner on Wednesdays and overnight every Friday and half of all Saturdays and Sundays and a vacation schedule of Wednesday. The father instead proposed a 5-2-2-5 schedule; the child would spend Mondays and Tuesdays with mother, Wednesdays and Thursdays with father and alternate weekends (Friday through Sunday).

The Court’s Ruling

The court held that the district court did not modify the parenting time without an evidentiary hearing. While Minnesota statute section 518.175, subd. 5 provides that a court may not restrict parenting time without finding, after a hearing, that parenting time is likely to harm the child or the parent has chronically and unreasonably failed to comply with court-ordered parenting time, the court found that reducing parent time is not the same as restricting parenting time.

The appeals court considered de novo whether the change in parenting time amounts to a restriction, considering the reasons for the change and the amount of reduction. First, neither party had asked for an evidentiary hearing or alleged one of the conditions that would justify restricting parenting time following a hearing. Instead, both parents asserted that each had a proposal that would promote consistency and predictability for the child, the mother by eliminating the father’s mid-week overnights and the father with an equalized schedule that would give the child “more regular, longer stretches of time with each parent but eliminated one of mother’s weekly overnights.” The schedule did reduce the mother’s parenting time from 65% to 50% by moving one overnight per week from the mother to the father. The court found that this reduction in the mother’s parenting time was not a restriction, and, therefore, upheld the district court’s decision to modify parenting time without an evidentiary hearing.

Minnesota Laws on Parenting Time

In 2014, the Minnesota statute on parent time modifications was amended by Chapter 197 of the 2014 Minnesota Session Laws. Under the new statutory language, a modification of parenting time that increases the other parent’s time so that it is between 45.1% and 54.9% of the time is not considered a restriction of parenting time for the parent whose time is reduced.

The court also held that the district court did not abuse its discretion by excluding evidence from the parties’ efforts at mediation. Under Minnesota Rule of Evidence 408, evidence from settlement negotiations is not admissible to prove a claim. The court noted that the district court had credited the mother’s testimony that the parties had difficulty communicating with each other, but found the district court dealt with that concern with a parenting schedule that required limited direct communication parties, requiring the parties to avoid disparaging the other parent in the child’s presence, and providing for an online communication tool. The court of appeals thus found that the statements and text messages excluded by the district court were “cumulative,” meaning that they did not add anything important.

In this case, the mother represented herself while the father was represented by counsel. A parent who is seeking a modification of custody is well advised to consult an attorney.

Parenting Time after One Parent Moves

Parenting Time after One Parent Moves

A move by the custodial parent can cause havoc with visitation schedules, as demonstrated by the Minnesota Court of Appeals in a recent decision, In re Custody of D.M.D., A12-1975 (Minn. Ct. App. Dec. 9, 2013). In this case, the Court of Appeals upheld a decision by the district court to modify the parenting time, decreasing the father’s parenting time during the school year, without holding an evidentiary hearing.

This case involved parents who never married but entered into an agreement for joint legal custody and joint physical custody when the child was about ten years old. The parents had parenting time on alternate weeks, a system that worked well when they both lived in the same metropolitan area. Unfortunately for the father, the agreement did not stipulate that the parents would remain in the same metropolitan area and said nothing about a move by one parent or the other.

Two years later, after notifying the father, the mother relocated to a town about seventy miles away from the metropolitan area and enrolled the child in school at that location. According to the mother, she moved because she could not find affordable housing suitable for her child and their dog in the metropolitan area.

The father moved to change the parenting time during the school year, arguing that he could not afford to drive the seventy miles to visit the child frequently.

The district court modified the parenting time during the school year so that the father had the first three weekends of every month; the parents continued to alternate weeks during the summer. The Court of Appeals held that this change was necessitated by the child’s move to another school district seventy miles away from the father. It was no longer practicable for the parents to have the child on alternating weeks during the school year; the court found that the new school district was too far for the child to live with the father during the school week.

The Court of Appeals noted that the modification of the school year schedule, from alternating weeks to three weekends per month, was a substantial change in parenting time, but held that a hearing was not necessary, as there was not even a suggestion of any actual harm to the child.   In Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. Ct. App. 2001), the court had held that an evidentiary hearing is required for substantial modifications of visitation if there is a prima facie showing that visitation would likely endanger the child, either physically or emotionally. Because there was no such showing of harm in this case, and the purpose of the district court order was to accommodate the child’s school schedule and not to thwart the father’s visitation with his child, there was no need for an evidentiary hearing in this case.

This decision makes clear the importance of obtaining good legal advice in drafting an agreement regarding custody. The court noted that the decision might have been otherwise had the agreement contained a stipulation requiring the parties to remain in the same metropolitan area absent court approval. By the time the case was heard by the district court, the child had already begun school in the new school district, and by the time the case was heard by the Court of Appeals, the child had already been attending school in the new school district for more than a year (fourteen months).

Anyone who needs a child custody or parenting time agreement should consult with an experienced family law attorney before entering into such an agreement.