March 30, 2007 — Rather than acting on the long-held state belief that children should not split between homes following a divorce, current Minnesota child custody legislation would require judges to at least begin with the presumption of joint physical custody in most cases.
State Senator Tom Neuville recently introduced SF1606, Minnesota child custody legislation which does not necessarily require judges to grant joint physical custody, but does mandate that they begin with this premise in most cases. Exceptions to this proposed MN child custody law would include cases where there has been a previous history of child or domestic abuse.
Neuville's proposed Minnesota child custody law does not detail a specific set amount of time for joint physical custody. However, this Minnesota child custody bill does say that the time does not have to be 50/50.
Neuville was recently quoted in an online Minnesota Public Radio story as saying that state courts have traditionally awarded physical custody to one parent, most often the mother, based on this idea that children need stability after the divorce process. Neuville added that courts have consequently painted a picture of fathers being less of a parent and caused children to miss out on valuable time and relationships with their dads during life after divorce.
The MPR story detailed how Justice Leroy Matson talked in 1945 about the importance of stability in the lives of children after a divorce. Matson said at the time that is difficult for children of divorced parents to achieve this stability when they are going back and forth between homes. The story added that Matson's opinion from more than 60 years ago is still cited in some Minnesota state courts today; a notion that Neuville found mind-boggling and not in tune with the times.
Minnesota child custody is currently defined in two ways - physically and legally. The parent with legal custody has authority over the big decisions in the child's life, including education, medical care and other important issues. The MPR story added that Minnesota courts traditionally look at 13 factors in order to come to child custody decisions which are in the best interests of the child. Just some of those factors include the child's preference, the ability of the parent to love the child, and the proximity between the child and the parent.
Like any piece of legislation, Neuville's Minnesota child custody bill has been both applauded and challenged. Dissenters to this Minnesota divorce legislation feel that judges should solely rely on those 13 factors when determining child custody. Minnesota family law attorney Pamela Waggoner said in the story that it's a bad idea to make a judge start with this presumption in child custody cases. She expressed her concern that this presumption could cause some judges to make child custody decisions which are detrimental rather than beneficial for the child.
Another divorce lawyer disagreed in the story. Barbara Aaby said that over the last 20 years, more and more dads have moved from this belief that they would only have custody of their kids on the weekends to now expecting shared physical custody. She added that it is now the exception rather than the rule for a father to not expect joint physical custody and then described this presumption as being in the best interests of the child.