Parenting Time after One Parent Moves
A move by the custodial parent can cause havoc with visitation schedules, as demonstrated by the Minnesota Court of Appeals in a recent decision, In re Custody of D.M.D., A12-1975 (Minn. Ct. App. Dec. 9, 2013). In this case, the Court of Appeals upheld a decision by the district court to modify the parenting time, decreasing the father’s parenting time during the school year, without holding an evidentiary hearing.
This case involved parents who never married but entered into an agreement for joint legal custody and joint physical custody when the child was about ten years old. The parents had parenting time on alternate weeks, a system that worked well when they both lived in the same metropolitan area. Unfortunately for the father, the agreement did not stipulate that the parents would remain in the same metropolitan area and said nothing about a move by one parent or the other.
Two years later, after notifying the father, the mother relocated to a town about seventy miles away from the metropolitan area and enrolled the child in school at that location. According to the mother, she moved because she could not find affordable housing suitable for her child and their dog in the metropolitan area.
The father moved to change the parenting time during the school year, arguing that he could not afford to drive the seventy miles to visit the child frequently.
The district court modified the parenting time during the school year so that the father had the first three weekends of every month; the parents continued to alternate weeks during the summer. The Court of Appeals held that this change was necessitated by the child’s move to another school district seventy miles away from the father. It was no longer practicable for the parents to have the child on alternating weeks during the school year; the court found that the new school district was too far for the child to live with the father during the school week.
The Court of Appeals noted that the modification of the school year schedule, from alternating weeks to three weekends per month, was a substantial change in parenting time, but held that a hearing was not necessary, as there was not even a suggestion of any actual harm to the child. In Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. Ct. App. 2001), the court had held that an evidentiary hearing is required for substantial modifications of visitation if there is a prima facie showing that visitation would likely endanger the child, either physically or emotionally. Because there was no such showing of harm in this case, and the purpose of the district court order was to accommodate the child’s school schedule and not to thwart the father’s visitation with his child, there was no need for an evidentiary hearing in this case.
This decision makes clear the importance of obtaining good legal advice in drafting an agreement regarding custody. The court noted that the decision might have been otherwise had the agreement contained a stipulation requiring the parties to remain in the same metropolitan area absent court approval. By the time the case was heard by the district court, the child had already begun school in the new school district, and by the time the case was heard by the Court of Appeals, the child had already been attending school in the new school district for more than a year (fourteen months).
Anyone who needs a child custody or parenting time agreement should consult with an experienced family law attorney before entering into such an agreement.