Modifications of Parenting Time

Modifications of Parenting Time

In Dawson v. Taylor, A14-0220 (Sept. 15, 2014), the Minnesota Court of Appeals upheld a district court’s order granting modification of parenting time without an evidentiary hearing. This case involved a child born in 2002 to unmarried parents. The father’s paternity was legally established in early 2005, and the court awarded them joint custody, with the mother having sole physical custody, and a visitation schedule that gave the father parenting time on ten days during a four-week period. In 2013, when the child was about eleven, the mother moved to modify the schedule, requesting a school-year schedule of school nights (Monday to Thursday) with her, with the father having the child at his home for dinner on Wednesdays and overnight every Friday and half of all Saturdays and Sundays and a vacation schedule of Wednesday. The father instead proposed a 5-2-2-5 schedule; the child would spend Mondays and Tuesdays with mother, Wednesdays and Thursdays with father and alternate weekends (Friday through Sunday).

The Court’s Ruling

The court held that the district court did not modify the parenting time without an evidentiary hearing. While Minnesota statute section 518.175, subd. 5 provides that a court may not restrict parenting time without finding, after a hearing, that parenting time is likely to harm the child or the parent has chronically and unreasonably failed to comply with court-ordered parenting time, the court found that reducing parent time is not the same as restricting parenting time.

The appeals court considered de novo whether the change in parenting time amounts to a restriction, considering the reasons for the change and the amount of reduction. First, neither party had asked for an evidentiary hearing or alleged one of the conditions that would justify restricting parenting time following a hearing. Instead, both parents asserted that each had a proposal that would promote consistency and predictability for the child, the mother by eliminating the father’s mid-week overnights and the father with an equalized schedule that would give the child “more regular, longer stretches of time with each parent but eliminated one of mother’s weekly overnights.” The schedule did reduce the mother’s parenting time from 65% to 50% by moving one overnight per week from the mother to the father. The court found that this reduction in the mother’s parenting time was not a restriction, and, therefore, upheld the district court’s decision to modify parenting time without an evidentiary hearing.

Minnesota Laws on Parenting Time

In 2014, the Minnesota statute on parent time modifications was amended by Chapter 197 of the 2014 Minnesota Session Laws. Under the new statutory language, a modification of parenting time that increases the other parent’s time so that it is between 45.1% and 54.9% of the time is not considered a restriction of parenting time for the parent whose time is reduced.

The court also held that the district court did not abuse its discretion by excluding evidence from the parties’ efforts at mediation. Under Minnesota Rule of Evidence 408, evidence from settlement negotiations is not admissible to prove a claim. The court noted that the district court had credited the mother’s testimony that the parties had difficulty communicating with each other, but found the district court dealt with that concern with a parenting schedule that required limited direct communication parties, requiring the parties to avoid disparaging the other parent in the child’s presence, and providing for an online communication tool. The court of appeals thus found that the statements and text messages excluded by the district court were “cumulative,” meaning that they did not add anything important.

In this case, the mother represented herself while the father was represented by counsel. A parent who is seeking a modification of custody is well advised to consult an attorney.

Modifying Custody Agreements under Minnesota Law

Modifying Custody Agreements under Minnesota Law

Under Minnesota Statute Section 581.18(d), when a court has jurisdiction to determine custody orders, the court may not modify a custody order that specifies the child’s primary residence unless, since the prior order, there has been “a change in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.” The Minnesota Court of Appeals recently explained the standards for determining both “a prior order” and “change in circumstances.” In Spanier v. Spanier, A13-2175 (Minn. Ct. App. Aug. 18, 2014), the Court of Appeals held that an order changing parenting time was not a prior order regarding custody, and that a parent who was enlisted in the military and received orders to deploy to another state was not a change in circumstances when the parent was living in another state because of military service at the time of the initial custody decision.

Specifics of the Case

At issue in Spanier was an original divorce decree that had granted the father, who lived in Minnesota, sole physical custody of the children. At that time, the mother was enlisted full-time in the Navy Reserve and resided in San Diego, California, with orders to deploy abroad. Subsequently, in 2010, after she learned she would be was stationed in Minnesota as of January 2011, she moved to modify the custody and parenting time. The parties resolved the motion by agreement, with the father maintaining sole physical custody and the mother having equal parenting time while she lived in Minnesota.

That agreement apparently worked well while both parents lived in Minnesota, but the mother then received orders to deploy to Virginia effective March 2014. She moved to modify the custody order so that her children would move with her to Virginia, and she lost both in the district court and on appeal.

First, the Minnesota Court of Appeals found that the order modifying parenting time so that the mother had equal parenting time was not a prior order regarding custody. Thus, an order that does not modify physical or legal custody is not a “prior order” under section 518.18(d). The result was that the prior order in this case was the original order, which granted the father sole custody, with the children residing in Minnesota while the mother was residing in California.

Second, the Minnesota Court of Appeals held that there was no relevant change of circumstances to warrant a change in custody. The court held that the circumstances – that the mother was deployed by the Navy and living in another state – were the same circumstances that existed at the time of the prior custody order. The court noted that the mother was well aware that her military service could result in her being deployed to locations apart from her children, and that the move to Virginia resulted from her employment, and her employment had not changed since the original custody order. The court also noted that the mother could be deployed anywhere; in fact, she had been deployed to Jordan from August 2009 to March 2010

An Attorney Can Help You with Your Case

This case makes clear that an original custody order can have long-lasting consequences because a change in circumstances is a necessary element of a motion to modify custody. Thus, it is useful to consult with an experienced family law attorney in resolving custody disputes. Jeffrey R. Arrigoni, Attorney at Law can help you solve any of your family-law related problems.