Category Archives: Child Custody

Relocation of 6 Year Old Child Out of State Permitted and Child’s Preference Considered

In S.M.K.v.D.M.K.,A14-1070(Minn..App.March 2 2015) the court appeals affirmed a trial court decision permitting a mother to move and relocate the parties’ six year old child to Florida. The Court analyzed all the factors in Minnesota Statute 518.175,subd.3, and ruled the trial court did not abuse its discretion in finding the move was in the child’s best interest.

The father claimed it was ,in part, error to consider the six year old child’s desire to move to Florida.The court accepted mother’s assertion  that although the child is a young age, he has expressed a desire to move to Florida and understands he will see his father less, but wishes to continue to live with his mother and maternal grandparents. Father claimed it was error to accept mother’s claim without any inquiry due to possible manipulation by the mother. The Court of Appeals affirmed the trial court and accepted its finding that there was no evidence in the record to support that the minor child cannot comprehend the meaning of the move to Florida.

The court cited to Peterson v. Peterson, 394 N.W.2d 586,588(Minn.App.1986)(court accepts trial court’s ruling that a seven-year-old child could express a custodial preference)rev. denied(Minn.1986).

The court also rejected Father’s argument that the trial court erred by not awarding him 25% of parenting time, which is the minimum rebuttable presumption under Minnesota Statute 518.175,subd.1(g)(2014). Father claimed the court made no finding why 51 days a year is in the best interests of the child when he should have received 91 days a year. The court found since that argument was raised for the first time in the Motion for Amended Findings it was not properly before the court and the trial court acted within its extensive discretion in granting parenting time less than 25%.

Lastly father claimed the trial court court erred in making the parenting time subject to be agreed upon by the parties without a specific schedule,claiming this would be a cruel joke to try to work out the details of the parenting time, subject to the whim of the mother.The court noted to the extent practicable a court must include a specific schedule for parenting time,including the frequency and duration of visitation and visitation during holidays and vacations as required by Minnesota Statutes 518.175, subd.1(e)(2014).

The trial court ordered two periods of two weeks during the summer months as agreed upon by the parties,one week during the child’s winter break,every spring break,every other Thanksgiving and Christmas holiday, and two of the child’s long weekend breaks from school as set forth in the school calendar, as well as such other parenting time as mutually agreed upon. The Court of Appeals affirmed this schedule noting the father did not propose a specific parenting time schedule to the court and that if there were problems or issues he could seek relief from the trial court, and the schedule  was not an abuse of discretion.

New Ruling from Minnesota Court of Appeals on Modification of Custody

New Ruling from Minnesota Court of Appeals on Modification of Custody

Minnesota Court of Appeals Holds that Granting the Non-Custodial Parent the Summer Break Is Not a Modification of Custody Nor a Restriction on Parenting Time When Done in Response to the Custodial Parent’s Move

In Suleski v. Rupe, #A13-2031, (Minn. Ct. App. Oc. 20, 2014), the Minnesota Court of Appeals held that an order modifying parenting time so that the non-custodial parent has more time with the child over the summer break than the custodial parent is not considered a modification of the child’s primary residence absent a specific indication from the court that the order is intended to modify custody or change the primary residence of the child when the custodial parent has more time with the child during the school year. Further, such a change in parenting time is not considered a restriction of the custodial parent’s time, as the custodial parent has more time with the during the school year. However, the court did reverse the district court in part, holding that a court must provide an explanation if it modifies a parenting time schedule for holidays that gives the non-custodial parent exclusive parenting time on all school breaks as well as Thanksgiving, Christmas, and New Year’s Even.

Specifics of the Case

In this case, the initial 2008 custody order gave the parents joint legal custody with the mother having sole physical custody of their eight-year-old child and the father having parenting time on Monday and Tuesday evenings during the school year and during the summers from Sunday to Tuesday, and every other weekend throughout the year, with the holidays being divided and each party having two weeks of uninterrupted vacation time during the summer.

That schedule worked until the mother remarried and moved from Dundas to Ramsey in Anoka County, which is 64 miles from the father’s location and about 75 miles from her prior home. With travel time of more than an hour from the school to the father’s home, providing the father with parenting time during the school week became impractical. Therefore, the mother moved to modify parenting time and transportation so that the father’s weekday parenting time would be eliminated, giving the father alternating weeks during the summer, splitting the holidays, and retaining the two weeks of vacation time. She also proposed splitting the transportation; the prior order had provided for the father to provide transportation if he moved out of the original hometown, Northfield.

 

In response, the father also asked for modifications. He asked that, instead of splitting transportation, the child live with the mother during the school year, with parenting time for the father every other weekend, and during the summer, the child would live with the father and the mother would have the child every other weekend, and that the holidays be divided between the parties.

 

Court Denies Mother’s Motion

 

At the hearing, held in June 2013, by which time the child was approximately thirteen, the court denied the mother’s motion and granted the father’s motion. The mother appealed, contending that could have allowed the father to custody had been modified without the required evidentiary hearing and sufficient findings as required by Minn. Stat. Section 518.18(d).

 

The court held that the district court did not modify custody or change the child’s primary residence but instead just modified parenting time in response to the mother’s move with the child. The court emphasized that the father was still required to provide child support during the summer; if the father had physical custody, the court could have allowed the father to suspend child support payments during the summer. Minn. Stat. Section 518A.26, subdivision 14.

 

Further, the family law statutes do not define primary residence. The court found the mother’s home continued to be the child’s primary residence as the child lives with her mother and attends school in her mother’s school district nine months of the year.

 

This case reveals the risks inherent in moving to modify custody. The mother filed the motion to modify yet the father wound up prevailing on his cross-motion.   Both the Minnesota Court of Appeals and the district court found her position, that the father’s parenting time should be reduced during the school year without any corresponding increase during the summer, was unfair to the father, given that the change was needed because the mother moved.   She did win on the holiday time because the court found that giving the father all the holidays and school vacations without any explanation was unfair.

Minnesota’s 2014 Child Custody and Parenting Time Amendments

Minnesota’s 2014 Child Custody and Parenting Time Amendments

On May 15, 2014, Governor Mark Dayton signed into law amendments to Minnesota’s child custody and parenting time laws, and these amendments became effective August 1, 2014. Chapter 197 of the 2014 Minnesota Session Laws displays greater acceptance of shared custody arrangements such as joint custody simply by providing neutrality toward joint physical custody. The Minnesota State Bar’s official publication, the Bench & Bar of Minnesota, in a recent article titled Custody and Parenting Time: Minnesota Amendments Codify Compromises predicted that these new amendments would likely lead courts that previously favored sole custody to be more willing to approve alternative arrangements.

While one factor to be considered when joint custody is sought is the ability of the parents to cooperate in child-rearing, presumably on the theory that joint custody is most workable when the parents cooperate in child-rearing, the amendments explicitly provide that disagreeing over whether custody is joint or sole is not considered an inability to cooperate in child-rearing. Thus, a parent cannot veto joint custody simply by arguing for sole custody.

Additional Factors to Be Considered

In addition to the ability of parents to cooperate on child-rearing, there are three other factors the court is required to consider in determining whether to award sole or joint custody:

  • Methods for resolving disputes regarding major decisions about the child, and the parties’ willingness to use those methods;
  • Whether one parent having sole authority over the child would be detrimental to the child;
  • Whether there has been domestic abuse, as defined in Minnesota Statute Section 518B.01, between the parents.

When the parties disagree on sole or joint custody, the court must make detailed factual findings on each of these factors and explain how those findings led to its decision as to whether joint or sole custody is in the best interests of the children.

Perhaps the most significant changes are the changes in modifications of parenting time, which may well promote continued litigation over child custody. Thus, Minnesota Statutes 2012, section 518.175, subdivision 5 (a), was amended to provide that considering a child’s best interest “includes a child’s changing developmental needs.” This amendment may promote additional litigation on child custody, as parents may argue that existing custody arrangements are no longer suitable because the child’s developmental needs have changed. `

That same statute, subdivision 1, was amended to provide that when issuing a parenting time order, the court “may reserve determination as to the future establishment or expansion of a parent’s parenting time,” and that the best interest standard applies to subsequent motions to establish or expand parenting time.

The statute was also amended to provide that a modification of a parent’s percentage of parenting time to between 45.1 to 54.9 percent parenting time “is not a restriction of the other parent’s parenting time.” Minnesota Statutes 2012, section 518.175, subdivision 5(b). This change is significant because the provision limits restrictions on parenting time, so this provision makes it easier for courts to modify parenting time when the parenting time is shared in a relatively equal way.

Do You Have Family Law Questions or Concerns?

If you are considering a custody agreement or modifications to an existing custody or parenting time order, consulting with an experienced family law practitioner may be useful. Jeffrey R. Arrigoni is available to help you with your family law matters in Minnesota.

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.

Modifying Custody Agreements under Minnesota Law

Modifying Custody Agreements under Minnesota Law

Under Minnesota Statute Section 581.18(d), when a court has jurisdiction to determine custody orders, the court may not modify a custody order that specifies the child’s primary residence unless, since the prior order, there has been “a change in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.” The Minnesota Court of Appeals recently explained the standards for determining both “a prior order” and “change in circumstances.” In Spanier v. Spanier, A13-2175 (Minn. Ct. App. Aug. 18, 2014), the Court of Appeals held that an order changing parenting time was not a prior order regarding custody, and that a parent who was enlisted in the military and received orders to deploy to another state was not a change in circumstances when the parent was living in another state because of military service at the time of the initial custody decision.

Specifics of the Case

At issue in Spanier was an original divorce decree that had granted the father, who lived in Minnesota, sole physical custody of the children. At that time, the mother was enlisted full-time in the Navy Reserve and resided in San Diego, California, with orders to deploy abroad. Subsequently, in 2010, after she learned she would be was stationed in Minnesota as of January 2011, she moved to modify the custody and parenting time. The parties resolved the motion by agreement, with the father maintaining sole physical custody and the mother having equal parenting time while she lived in Minnesota.

That agreement apparently worked well while both parents lived in Minnesota, but the mother then received orders to deploy to Virginia effective March 2014. She moved to modify the custody order so that her children would move with her to Virginia, and she lost both in the district court and on appeal.

First, the Minnesota Court of Appeals found that the order modifying parenting time so that the mother had equal parenting time was not a prior order regarding custody. Thus, an order that does not modify physical or legal custody is not a “prior order” under section 518.18(d). The result was that the prior order in this case was the original order, which granted the father sole custody, with the children residing in Minnesota while the mother was residing in California.

Second, the Minnesota Court of Appeals held that there was no relevant change of circumstances to warrant a change in custody. The court held that the circumstances – that the mother was deployed by the Navy and living in another state – were the same circumstances that existed at the time of the prior custody order. The court noted that the mother was well aware that her military service could result in her being deployed to locations apart from her children, and that the move to Virginia resulted from her employment, and her employment had not changed since the original custody order. The court also noted that the mother could be deployed anywhere; in fact, she had been deployed to Jordan from August 2009 to March 2010

An Attorney Can Help You with Your Case

This case makes clear that an original custody order can have long-lasting consequences because a change in circumstances is a necessary element of a motion to modify custody. Thus, it is useful to consult with an experienced family law attorney in resolving custody disputes. Jeffrey R. Arrigoni, Attorney at Law can help you solve any of your family-law related problems.