Tag Archives: Evidentiary Hearing

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.

With Joint Legal Custody, If Parents Cannot Agree on Education and Health Care Decisions, the Court Will Decide

With Joint Legal Custody, If Parents Cannot Agree on Education and Health Care Decisions, the Court Will Decide

Under Minnesota law, Minnesota Statute 518.003(3)(b)(2013), joint legal custody means that both parents have equal legal rights regarding the child’s upbringing, including decisions regarding education and health care. If parents disagree on major decisions, such as which school a child should attend, they need to bring the dispute to the court to resolve rather than making unilateral decisions without the agreement of the other parent. Himley v. Himley, No. A-12-1876 (Minn. Ct. App. Aug. 26, 2013.

While in many cases, parents agree to joint legal custody because they share a parenting philosophy and get along well enough to make important decisions together, the court may order joint legal custody even if the parents disagree. Thus, in Himley, the district court had ordered joint physical and legal custody even though the parents had a “terrible relationship” and were incapable of cooperating on parenting issues because both were good parents and had good relationships with the child, making joint custody in the best interests of the child.

In Himley, although the court order provided that the child live with the mother in New Ulm during the school year and with the father in Edina during the summer, the mother and her new husband moved to Elk River without the father’s knowledge or consent. As a result, the father moved to require the child to attend school in Edina and live with the father during the school year.

In ruling that the district court did not abuse its discretion in finding that the child should attend school in Edina, the father’s hometown, the Minnesota Court of Appeals emphasized that one statutory factory in determining the child’s best interest was “the disposition of each parent to encourage and permit frequent continuing contact by the other parent with the child.” Minn. Stat. 518.17(1)(a)(13)(2013).   The court noted that the mother had used her living location, both in moving to New Ulm and later to Elk River, to limit the father’s access to his child. The court also noted that the mother had no right to unilaterally change the child’s school enrollment from New Ulm to Elk River without the father’s consult. In finding that living in Edina was in the child’s best interest, the court also noted that the child could be able to spend time before and after school with his father instead of having to attend childcare, and the child had no connections at all in Elk River whereas the child knew other children in Edina and would also be able to spend more time with his stepsister.

The court also held that the change in parenting-time was “a necessary, collateral consequence” of the joint legal custody decision regarding school choice and not a modification of custody or parenting time. The court noted that, with the modified schedule, the mother, who was a teacher, would have the summer, when she was off of work, with her child. The court also gave the mother every Wednesday overnight, even though it noted that the round trip distance between the two parents’ homes was 80 miles. The court found that the new schedule maximized the child’s time with both parents, spending time before and after school with the father during the school year and spending the summer with the mother, when she was not working.

The court also found that the district court was within its discretion in not holding an evidentiary hearing, noting that a party in a family-law case has a right to an evidentiary hearing only if he or she requests such a hearing. In this case, the mother did not request an evidentiary hearing although the court made it clear that it would not hold an evidentiary hearing unless one was requested.

The court also did not address the mother’s argument that the district court judge was biased against her because she did not make that argument to the district court, either by a motion to remove the judge or a motion for a new trial.

Any parent who has joint legal custody and disagrees with the other parent on a major parenting decision, such as which school the child should attend, should not act unilaterally and should consult an experienced family law attorney.