Presumptive Joint Physical Custody bill
From R-KIDS of MN and GPF
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Presumptive Joint Physical Custody
Current laws of Minnesota have not built in any presumption of physical custody. The practical effect is that fathers get sole physical custody in about 8% of custody cases. Due to this discrepancy, For all practical purposes, fathers are driven out of their children's lives and are forced to play a minor role in raising them.
In this article entitled "consequences of Minnesota Child Support Guidelines for Children of Divorced Parents" you will find support for Joint Physical Custody. This article was written by Dr. Kathryn D. Rettig and Dr. Kerry Kriener-Althen at the University of Minnesota Department of Family Social Science.
Here is further support for Joint Physical Custody.
Read our Proposed Bill
2005/2006 Joint Physical Custody Legislation
Representative Eastlund authored House File 1191 (HF1191) which contained very strong language for presumptive joint physical custory(PJPC). The bill also contained a revision to child support making both parents responsible for the cost of raising their children rather than only the non custodial parent.
Representative Smith authored House file 1321 (HF1321) which contained no provision for joint physical custody. It was only the same bill that he had proposed in the past. The PJPC part of House File 1191 was amended into House File 1321.
House File 1321 has passed Civil Law, Public Safety, and Jobs and Economic Opportunity House Committees.
As of May 07, 2005 House File 1321 has to pass through the Ways and Means committee in order to make it to the floor of the House. The current hurdle for ways and means is the four million dollar fiscal note that was put on the bill in order to implement the law.
The Bill HF1321 should make it the MN House floor where the house will vote on it.
We believe that Rep. Smith will make an attempt to remove the PJPC language from his bill. If this happens, we believe there will be a significant debate over the bill. If the PJPC language is taken out, Smith's bill will not likely pass.
If Smith's bill passes with PJPC in it, it will then move to the conference committee where it will be lined up with Senator Neuville's bill Senate File 630 (SF630). SF630 does not have a presumption of joint physical custody. There are rumors that attempts to amend Rep. Eastlund's PJPC language into SF630 will take place when it lands on the Senate floor.
Read what the Supreme Court of Minnesota thinks about this law in their report to the Ways and Means committee.
We do not know what will eventually happen. But what we do know is that presumptive joint physical custody will be an election wedge issue.
Dispelling A Common Criticism
It has been suggested that nobody should be fighting for joint custody because only "equal" custody will suffice. I respectfully disagree.
Beyond the vagaries of what "equal" means as applied to custody (child shifts households every week vs. monthly vs. annually? Must child stay in mom's custody if she works two jobs and is never home but dad is willing and able to care for them while mom is at work? etc.), there is a much more important reason to focus efforts on a campaign for the recognition of joint custody as a matter of fundamental law: namely, you can't even get to the point of talking about what kinds of time-sharing arrangements are "equal" unless and until you first establish that both parents are equally important to their children.
I think I understand the warning of the gentleman who urged people to fight for equal custody rather than joint custody, but I still think that the effort to educate legislators and the courts to see that joint custody is a fundamental right of parents is of paramount importance in those States that continue to believe that children do best when one of the parents is excised from their lives.
Custody law reform, like any kind of law reform, is a two-stage process: First, you have to convince the powers-that-be in your State that change is needed. In some States, that means convincing them that fathers are even relevant at all. Believe it or not, there are still some States (such as the one in which I live, Minnesota) in which neither the legislature nor the courts have overruled decades-old judicial precedents saying that children must be placed in the care and custody of only one parent unless some special circumstance can be shown as to why a child in a particular case might benefit more by being placed in the care of both of his or her parents.
So, in the case of custody law reform, the first stage would be establishing, as a matter of law, that the best parent for a child is both parents, i.e., joint custody. The second stage of law reform is vigilance. In the case of custody law reform, that means that once joint custody is established, you have to be vigilant to make sure the fundamental concept is not eroded or subverted by tricks such as what apparently has happened in Kansas. Changing the name of the sole custodial parent to "residential" parent and the name of the visitor parent to "non-residential" parent is not joint custody. True joint physical custody means that each parent is the primary custodian of the child for exactly that period of time that the child is in his/her care. Changing the wording of a statute to talk about "primary residence" is legislative trickery and, if parental rights and obligations depend on the classification, then your legislature has not really enacted a joint custody law.
The fact that your legislature claims to have enacted a "joint custody" law, when it really hasn't, doesn't mean that the presumption of joint custody is wrong, though. To the contrary, it only means that your state doesn't really have joint custody, and that the job of achieving joint custody is not yet done. The only thing that has been accomplished in your State is that your legislature has done its best to appease the excised parents (i.e., fathers) by fooling them into thinking that joint custody has been established when in fact it has not.
A similar thing happened in Minnesota a while ago. A progressive legislator tried to get a joint custody bill passed, but by the time it made it to the floor for a vote, it had been amended so many times that all it really did was change the language in which judges are supposed to couch their sole custody orders. Now the parent who used to be called the "visitor" became a "parenting time exercisor." If you look deep into the fine print of the so-called "shared parenting" bill that was passed, you'll see that beneath all the flowery language about "shared parenting plans,' "parenting time," and so on, it still requires one of the parents be designated the "custodial" parent, at least for child support purposes: As Pete Townshend put it, "Here comes the new boss; same as the old boss."
Whether they call a bill or a law a "shared parenting law" or a "joint custody law" or "the fathers' equal rights act" is not as important as what the law or bill actually DOES. If it still requires that one parent be regarded as the "primary" or "real" or "principal" parent, then it is not a joint custody bill or law. It is a Trojan horse dressed up as joint custody..
Both our state and federal legislators have often passed laws that are titled in ways that suggest exactly the opposite of what they really do. Take the affirmative action laws and policies that were adopted in the 1970 and 1980's, for example. They were almost always called "equal opportunity" laws. In fact, however, they mandated unequal opportunity by requiring discrimination based solely on race and gender. Do we infer from that that no one should ever fight for equality? Certainly not. It only means that true egalitarians have reached the second stage of reform: vigilance to ensure that their legislators are achieving real reform and not merely pulling the wool over their eyes.
--Tom James
Presumptive Joint Physical Custody Bill
Read the PDF version by clicking here
Read the Revisor Edition of this bill in PDF format by clicking here
A BILL FOR AN ACT clarifying the definition of “the best interests of the child” in child custody disputes, establishing a rebuttable presumption in favor of joint legal and physical custody in child custody disputes, establishing a rebuttable presumption in favor of the parent more disposed to encourage and permit continuing and frequent contact by the other parent with the child, and amending Section 518.17 of Minnesota Statutes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Section 518.17 of Minnesota Statutes shall be amended to read as follows:
518.17 CHILD CUSTODY ON JUDGMENT.
Subdivision 1. The best interests of the child.
(a) “The best interests of the child” means all relevant factors to be considered and evaluated by the court, including but not exclusive of
- the wishes of the child’s parent or parents as to custody;
- the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
- the child’s primary care taker;
- the intimacy of the relationship between each parent and the child;
- the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;
- the child’s adjustment to home, school, and community;
- the length of time the child has lived in a stable, satisfactory environment and desirability of maintaining such continuity;
- the permanence, as a family unit, of the existing or proposed custodial home;
- the mental and physical health of all individuals involved;
- the capacity and disposition of the parties to give the child love, affection, care, and guidance, to assure the #child a good education, and to continue raising the child in the child’s culture, language or languages, and religion;
- the child’s cultural, linguistic, and religious background;
- any addiction to alcohol or other habituating substances, domestic violence, physical or sexual abuse, or injurious habits or immorality attributable to either parent or any person living near or with either parent insofar as such acts, addiction, violence, habits, or immorality may adversely affect the child:
- the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child; and
- any false allegations made in bad faith by one parent against the other parent or anybody living with or near the other parent to gain unfair advantage in the custody determination.
(b)In determining the best interests of the child, the court may not use any one factor to the exclusion of all others, may not use the primary caretaker factor as a presumption, may not prefer one parent over the other on account of sex, and must make detailed findings of each relevant factor and explain how each has led to the conclusion reached, unless the presumption set forth in Subd. 2(a) is applied and followed.
Subd. 2. Rebuttable presumptions in child custody disputes. (a) The court shall use a rebuttable presumption that joint legal and physical custody is in the best interests of the child. Any departure from such presumption must be justified by detailed findings. Whenever it appears that the parents have difficulty in communication or cooperation with respect to the child, the court may establish rules which shall govern in case of disagreement between them.
(b) Whenever it appears that both parents are fit, but that joint legal and physical custody is not feasible and cannot be remedied by rules which shall govern in case of disagreement between the parents, the court shall use a rebuttable presumption that the best interests of the child will be served by granting legal and physical custody to the parent more disposed to encourage and permit frequent and continuing contact by the other parent with the child. Any departure from such presumption must be justified by detailed findings.
Section 2. This act shall take effect upon approval by the governor.
