Minnesota Reviews Child Custody Laws

Minnesota is considering passing legislation to make shared physical custody of children between both parents a presumption of the court. Under the current law, the courts presume that parents will share legal custody. But physical custody is up for grabs. Detractors of the current law believe that it sets up families for bitter custody disputes and frequently results in fathers and children being short-changed of time with each other.

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Functional Joint Physical Custody Better for Children

Idaho and Australia have both enacted presumed joint physical custody laws in recent years. In cases in which the parents can set aside their conflict, this works out well for the children. In other cases, it may not. Sometimes this is due to failures on the part of both parents to cooperate and a lack of a parenting coordinator ^[3] to resolve disputes without going to court. Other times it is because one parent in particular drives conflict, refusing to follow court orders, permit reasonable parent/child telephone contact, conduct scheduled custody exchanges, and share information necessary for parenting.

A 284 page long Minnesota study group report regarding the estimated impact of presumed joint physical custody was issued on January 14, 2009. It can be viewed here ^[4]. The report discusses that the current law includes rebuttable presumptions of a minimum of 25% physical custody for parents and joint legal custody. However, it also includes a rebuttable presumption that joint legal and joint physical custody are not in the best interests of the child if there has been domestic abuse.

Epidemic of False Abuse Allegations in Child Custody Conflicts

While we agree that children living with a child abuser is not a good idea, the reality is that the legal and child protection systems are biased to assume men are guilty of abuse based merely upon accusation. In states in which gender bias is gradually being reduced, there is still an assumption that the party accused of abuse is guilty of it. Evidence doesn’t matter. This means the courts have created an unjust and detestable situation in which false accusations are to the advantage of the false accuser. Courts reward lies and perjury, and therefore the lies and perjury become commonplace and an accepted tactic in divorces and child custody battles.

Based upon experiences with high-conflict divorce cases, it is all-too-frequent that one parent tries to falsely make the other out to be an abuser. The epidemic of false restraining orders ^[5], especially in family law cases, makes it clear that some parents are using false domestic violence claims to get de facto child custody and seriously harm an ex-spouse or other parent without regard to the damage it does to the children.

The standards for proof for temporary restraining orders in most places in the US today are basically “accusations are the truth, no evidence is required, no defense is allowed”. This means that restraining orders, or protective orders as they are sometimes called, are issued with no due process on a regular basis. Even though such orders may in theory be temporary, they often stay in place for months or even years. This often happens if the restrained party is overwhelmed by the impact of the false accusations such as by being kicked out of the family home and simultaneously being saddled with massive financial obligations. For these or other reasons, some can’t afford to hire legal representation. Others just don’t want to fight the orders because they don’t want to see the falsely accusing person anyway. But often the courts will take this as a finding of domestic violence and then use it to permanently curtail or ban contact between the children and the falsely accused parent. This results in serious harm to many parents and more importantly children who can do little to nothing to defend themselves against a malicious parent bent on the destruction of their relationship with the other parent.

The Minnesota study group report unwisely fails to discuss the impact of false abuse allegations, instead implying that abuse allegations are generally true. Nor does it discuss the widespread evidence for intimate partner violence being committed by both partners in half of relationships with violence, by females only in 1/3 of violent relationships, and by males only in 1/6 of cases. For more information, see our recent postings Female Violence Against Males ^[6], Women commit more than 70% of single-partner DV ^[7], and Lesbian relationships more violent than heterosexual relationships ^[8].

The bias in the courts and law enforcement today is to assume men are aggressive and abusive and women are always victims, but this is not accurate. Further, the law should decide cases based upon factual evidence, not based upon stereotypes. If the courts were still widely deciding guilt based upon stereotypical race profiles, such as the shameful “lynch the black man” mentality of the past, there would be widespread revolt against such practices. Why should persecuting fathers based upon inaccurate stereotypes and little to no evidence be regarded as anything less than shameful and reprehensible?

Women should not take solace that their gender will somehow render them untouchable by false abuse allegations. Men have increasingly learned to use the abusive divorce tactics formerly used almost exclusively by women. Falsely accused parents of either gender deserve protection from false accusations. The false accusers must be countered with clear and widely distributed reports of their lack of credibility and punishment for repeated offenses to help ensure that they will stop their abuses.

We believe the research is clear and consistent enough that the courts and law enforcement must make a concerted effort and clear public policy statements that both women and men can be domestic violence and child abuse offenders. Further, they must make it clear that false accusations will be punished with increasing severity with repeated false claims and then follow through on the actions required. Anything less will continue to perpetuate a grossly defective justice system which rewards abusive liars and persecutes the falsely accused.

False Belief That Co-Parenting Failure “Takes Two”

Further, the Minnesota study group report implies that “it takes two to fight” and that inability to co-parent is caused by both parents. Let’s face it, this line of reasoning is devoid of intellectual and ethical substance. By this reasoning, a parent who follows court orders, tells the truth, and puts the children’s interests at top priority is at similar fault for failure of co-parenting with a parent who violates court orders, lies and perjures, and can’t separate her or his personal opinions from what is best for the children. This is obviously unreasonable. But the Minnesota study group report does not broach the topic of all-too-common one-sided refusal to cooperate by a vindictive or mentally ill parent. This problem must be publicized and faced head-on, not hidden from view, if there is any hope of designing a child custody determination system that actually arrives at a workable arrangement while reducing conflict, harm to children, and expenses to families and taxpayers.

Mental Illness Drives Many High-Conflict Family Disputes

The report completely fails to mention the impact of mental illness on causing high-conflict divorce and child custody cases. It is commonly known that many of the most high-conflict cases involve mental illnesses, particularly personality disorders such as Borderline Personality Disorder ^[9] and Narcissistic Personality Disorder ^[10]. With experts such as William Eddy ^[11] writing numerous books ^[12] and conducting training seminars on the link between mental illness and high-conflict litigation, we find it unconscionable that the report fails to address this issue. It is particularly germane to child custody disputes and failure of co-parenting arrangements to work.

Parental Alienation is Common in High-Conflict Cases

One concern the report raises about presumed joint physical custody is that it could leave children in the middle of a high-conflict battle zone between parents. Some parents can’t separate the conflict between each other from their children. They instead engage in parental alienation ^[13] against the other parent. Often this is an attempt to retaliate against the other parent or to control where the children will spend their time by making the children hate the target parent. It is also often driven by mental illness on the part of the alienating parent. Although parental alienation is a form of child abuse, courts have often sided with the abuser supposedly in the best interests of the children to reduce the amount of conflict to which they are exposed. This can result in a reasonable and responsible parent being stripped of all custody and the children’s relationships with that parent being severely or terminally damaged.

More recently, some courts are acknowledging that alienating parents are irresponsible and destructive and are stripping them of custody. A recent case ^[14] in Toronto, Canada, involved a mother who spent years trying to force the children to hate their father and to block them from spending time with him. The court ruled that since she would not cooperate with stopping the alienation and joint physical custody, she would no longer have contact with the children except during special therapy designed to help her stop her alienating behaviors.

Allocating Physical Custody Based Upon Pre-Divorce Parental Contact

Scholar Robert Emery ^[15] favors an idea that post-marriage physical custody is based upon the time spent by each parent with the children during the marriage. For instance, if a parent spent 10% of the time with the children during the marriage, then that parent would only get 10% of the time after the marriage.

Emery’s thinking mentioned in the report seems naive, and we suspect that it may not represent his full grasp of the topic. Establishing parental contact patterns prior to divorce is difficult to do conclusively in most cases. People simply do not keep records that show who spent time with whom going back years. Relying on third parties is prone to error not only because of intentional dishonesty that occurs in many conflicted custody cases, but further because parents may have different parenting styles. For instance, one parent may frequently take the children to social gatherings with third party witnesses during the other parent’s working hours. The other parent may be responsible for feeding the children dinner and taking care of them throughout the night while the more social parent meets with friends, works, or takes classes and is away from home. Just because nobody outside the family sees the typical evening and nighttime parent-child interaction doesn’t make it any less valuable to the children.

Further, making pre-divorce parental contact time a major input for child custody decisions creates another incentive for lies, perjury, and contempt-of-court. Family law courts are citadels of lies and perjury. Already many parents spent considerable effort to lie about the amount of time they spent with the children during the marriage because they believe it may have some effect on custody decisions. Without courts actively seeking out and punishing perjury, formalizing this as a major criteria for custody will cause even more perjury and conflict.

There can be normal circumstances that leave one parent with much more time with the children on a temporary basis. For instance, it is not unusual for mothers to take months of maternity leave from work and stay home with the kids while the father is still working. Does this mean if divorce is filed the father should get little time with the children? No, it should not.

Furthermore, there can be unusual circumstances, such as a medical or financial crisis, that can leave one parent unable to spend as much time with the children as he or she would like for months or years. Should a parent who was sick in a hospital or working two jobs because the other parent was unemployed be left with minimal contact because that was the situation in the time preceding the divorce? That doesn’t seem fair to that parent or to the children. And for young children, how do you establish “pre-crisis” circumstances when substantial evidence of this may be unavailable such a time may have been before a child could talk or before birth? Even if third parties are available to testify, in high-conflict family law cases third parties are often convinced to perjure themselves to assist a friend or family member. Proving the perjury may be difficult to impossible, especially given the disinterest in the courts of reading filings that contain substantial evidence because the judges claim that they simply don’t have time.

Joint Physical Custody Does Not Inherently Raise Conflict Levels

We don’t buy into the arguments against joint custody harming children because it inherently increases conflict. It is as unreasonable an argument as claiming that treating ill people is a bad idea because they may get ill again in the future, so it would be better to simply do nothing. Children benefit from access to both parents, and if the parents can’t get along then find a way to deal with that without harming the children.

Giving custody to an alienating and therefore abusive parent, as courts are apt to do to “avoid conflict”, is also an unreasonable argument. It is little different than throwing the victim of a shooting into jail because obviously the person must have done something to cause the shooting and clearly it would be bad to inspire any more violence by the shooter. Under all but unusual circumstances, both the shooter and the alienating parent deserve the punishment, not their victims.

Suggestions for Child Custody and Support Policies

Our positions on child custody and support decisions are as follows:

• We agree with the enforcement of a judicial presumption of a 50/50 physical custody split absent clear and convincing evidence of abuse against the children.

• The 50/50 custody split is to be aimed for over the course of a year, to allow for situations such as parents living too far apart to exchange physical custody on a frequent basis.

• When parents live in proximity to each other, custody exchanges should occur at least once per week on a typical basis to enable the children to maintain ongoing relationships with both parents.

• Children should be enabled to contact either of their parents while in the custody of the other at least once a day.

• Children should be encouraged to contact either of their parents while in the custody of the other at least twice per week.

• Parents should be required to cooperate with children contacting the other parent and custody exchanges. The presumption should be that if that contact is not occurring despite attempts of the children or other parent or exchanges are not occurring, the interfering parent should be fined and/or jailed with increasing severity to gain compliance. If compliance is still not gained, the court should suspend custody of the offending parent and place the whole family into high-conflict custody therapy to be paid for by the offending parent. The goal will be to gain compliance of the offending parent for the benefit of the children and eventually move back to shared physical custody.

• Domestic abuse between partners should be disregarded unless it resulted in a felony conviction. Based upon well-reputed modern research, it’s likely that both parties were involved in inflicting partner violence on each other so if the argument that a parent who used violence cannot see the children were to be used, in many cases both parents would be unfit. Further, much domestic violence complained about in child custody cases is low-intensity that gets blown out of proportion via distortions designed to manipulate child custody proceedings. For instance, “yelling” is alleged to be violence even when it was occurring in a situation that might cause a typical non-abusive person to yell. Further, there is no compelling evidence that typical low-level DV between parents translates into child abuse.

• Parents who cannot get along should be required to employ parenting coordinators to monitor their cases and force them to resolve disputes without involving the children.

• These parenting coordinators should be monitored for objectivity, and if excessive complaints occur with repeated findings of basis for those complaints, they should be banned from further services as parenting coordinators.

• If custody changes are required because of ongoing disputes and lack of cooperation, having an objective third party available to issue a report to the courts will greatly assist the court in ascertaining which parent, if any, was cooperative and reasonable and which was not. Without this information, we do not believe that custody decisions can be made in a just way that respects the best interests of the children and the rights of the parents.

• Child support arrangements perceived to be unfair are frequently a cause of conflict between parents. Correcting the perceived unfairness while meeting the needs of the children is necessary to ensuring the best chance of working joint physical custody.

• Baseline child support payments should be based upon the actual cost of raising a child by a middle-class family in the areas in which the parents and children live. For example, it doesn’t cost $5000 per month to raise a child in a typical American household, so why should a high wage earner have a very large percentage of pay taken to support a lifestyle that he or she can’t even afford?

• In cases of 50/50 joint physical custody, child support in general should not be required unless there are unusual circumstances such as an inability of one parent to work that would leave the child at risk of inadequate food, clothing, and shelter or substantial differences in the cost of living between two regions. For instance, if one parent moved from New York City to rural Pennsylvania and the other stayed in New York City, it is likely there will be a substantial difference in cost of living and that may need to be considered if it impacts the well-being of the children.

• Child support should be payable by means other than cash. There are parents who are unwilling to spend child support on the children and instead use it to litigate against the paying spouse or for their own personal enjoyment, neither of which benefit the children. Such support could include food and clothing from a list of commonly used items specified by the receiving parent based upon a list of typical middle-class standard living items. In other words, carrots and lettuce and $3 loaves of bread are reasonable child support items, but $50 per pound exotic fruits, $100 per ounce caviar, and $200 designer jeans are not.

Further reading

Minnesota Joint Physical Custody Study Group Report Now Available ^[16]

Child Custody Law Up for Review ^[17]

Minnesota’s Child Support Laws: An Overview ^[18]