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.