How Parenting Time Is Determined In Minnesota Divorce And Child Custody Cases.
The issue of "parenting time" (formerly called visitation) is where the court decides how much time a person gets to spend with their children
. By law, a court must award a parent sufficient time in order to enable the child and the parent to maintain a child to parent relationship that will be in the "best interests of the child."The phrase "best interests of the child" is a technical legal phrase with a specific meaning under Minnesota law. It refers to all relevant factors in a child's life, with particular emphasis on the thirteen (13) factors set forth in Minnesota Statutes Section 518.17.
In cases where a parent's behavior is likely to endanger a child's health or wellbeing, courts are empowered to restrict parenting time (e.g., by limiting its duration, requiring a specific location, or imposing other conditions) or to even deny it entirely. Parenting time restrictions are most often used when a parent has chemical dependency or mental health issues.
In 2008, the Minnesota legislature revised the rules governing parenting time. In response to concerns by noncustodial parents that they were not being awarded enough parenting time, the Legislature enacted a law requiring courts to award every parent at least 25 percent of the parenting time with their child, absent evidence to the contrary. Because courts usually calculate parenting time percentages by counting the number of overnights a parent spends with a child, in practice this can mean about 3.5 of every 14 days.
However, it is important to understand that the "25 percent presumption" is only a presumption. Courts can, and frequently do, make awards much greater and much smaller than what the presumption requires. There is no one size fits all approach.
Developing a Workable Parenting Time Schedule.
When I work with clients to help develop an appropriate parenting time schedule, I usually begin by looking backwards, by examining the family's history of care. How did the parents care for the children before the family court was involved? What types of patterns or routines did they use? Who provided what types of care?
The initial backward looking focus is not intended to reward a parent for past conduct - family courts don't reward people for past care - instead, it provides a baseline assessment of what has been happening in the family. If mom or dad (or anyone else) has been providing most of the children's care for the past ten years, it might not make sense to suddenly shift that care to someone else. Be honest. It can be hard to admit who has been caring for the children.
After we have a good understanding of what has been happening, we can begin to focus on what should happen in the future. We try to project which parent (or parents) would be best suited to care for the children going forward. As a starting point, we examine whether the parent who has provided the majority of the children's care in the past remains best positioned to provide the care in the future. Sometimes the answer is yes. Other times the answer is no. It depends on the facts. As children grow older, their developmental needs change. The parent who changed diapers, warmed bottles, or prepared meals might not be the parent best equipped to care for a rebellious teenager. But, then again, stability might be exactly what the troubled teen needs. It is impossible to say in the abstract.
When approached honestly, the process of determining who best can provide for the children's future care (down to the nitty-gritty details) usually leads to a concrete and workable parenting time schedule. For example, if we learn that dad works every weeknight until 9:00 p.m., overnight parenting time during the week might not be practical. Conversely, if we learn that dad doesn't work on Mondays or Tuesdays, having him care for the children on those days (instead of putting them in daycare) seems to be the right decision.
Remember, parenting time is about staying connected with the children. It is not about achieving mathematical equality with a former spouse. In many cases, a fifty-fifty parenting time schedule would be simply unworkable - if not for the parents then for the children. But, an unequal parenting time schedule is not always a bad thing. Many times it simply means that the parents are putting the needs of their children before their own.
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