|Written Submissions to Joint Physical Custody Study Group
Hard Copy Version with Names of Submitters
(Updated -w- names on January 6, 2009)
Written Submissions AGAINST a Presumption of Joint Physical Custody
Presumptive joint custody is completely a disastrous move. Many children are primarily raised by one parent (majority of the time the mother) even in 2 parent homes. Those children develop a close bond to that parent. By presuming that joint custody is best for that child you are only considering what the parent wants. Tearing that child away from the parent for great lengths of time is ridiculous.
Many times one or both parents put the child/ren in the middle and make them play messenger. This causes hurt feelings to the other parent and the child. This is a great example of why joint custody doesn't work. 2 people that get a divorce probably do not get along or they would have stayed married. Joint custody opens up the opportunity to argue about many many things. Sole custody allows one parent to make decisions for the best of the children. There cannot be any hold ups on testing for children as only one parent has to agree.
Joint custody is not in the best interest of children or of parents.
__________________________________________________________________________________________________________________To: Joint Custody Study Group, Minnesota State Court Administration
From: Domestic Abuse Committee of the Minnesota State Bar Association’s Family Law Section
(Submitted by Hon. Mary Louise Klas (ret.), DA Committee member)
Date: November 14, 2008
Re: Commentary on Joint Custody Presumption Proposal
I am a member of the Domestic Abuse Committee of the Minnesota State Bar Association’s Family Law Section and have been delegated the task of submitting its comments on the proposed joint physical custody legislation.
The Domestic Abuse Committee’s mission is to “assess and provide commentary (to the Section and others) on the effect of any proposed policy or law on victims or perpetrators of domestic violence and their children. The committee seeks to determine what family lawyers in Minnesota can do to prevent domestic violence by engaging in best practices no matter whether they are representing the victims or representing the perpetrators of domestic violence.”
In exploring the subject of a joint custody presumption, we examined the social science literature related to this issue as well as our own experiences as practitioners. We have concluded that there are many reasons to oppose a presumption.
1. Should there be a change in Minnesota's custody laws to favor a presumption of joint physical custody?
No. In order to serve the best interests of children, joint physical custody should be reserved for cases where the arrangement is in the best interests of the child and where both parents agree to it. The proposed custody presumption would increase the number of families with joint physical custody. Joint custody has long been known to be inimical to the interests of children in families where domestic violence has occurred. Minnesota’s legal custody statute recognizes this reality. Because it would primarily be applied to contested cases, most of which involve domestic violence, child abuse or serious substance abuse, the proposal would result in more children from abusive homes being placed in harmful custodial arrangements. For these and other reasons detailed below, the Domestic Abuse Committee of the Family Law Section of the MSBA opposes a presumption in favor of joint physical custody.
2. What are the pros and cons of the state adopting a presumption of joint physical custody in law?
A. A history of domestic violence is common in contested custody cases and therefore, the presumption will primarily be applied in domestic abuse cases.
Our experience as family law practitioners shows that while many couples reach agreement through negotiation, assisted or otherwise, a large number of the cases which are highly conflicted (and which are, therefore, far more likely to be subject to the proposed presumption) are those which involve allegations of domestic or child abuse or maltreatment.
Research on this issue is remarkably consistent and demonstrates that the majority of contested custody cases have a history of domestic violence. For example, in her seminal book about “high conflict” divorce, Janet Johnston, one of the nation’s leading researchers and writers on child custody, cited a study which found that among custody litigants referred to mediation, “[p]hysical aggression had occurred between 75% and 70% of the parents . . . even though the couples had been separated. . . [for an average of 30-42 months].” Furthermore, “[i]n 35% of the first sample and 48% of the second, [the violence] was denoted as severe and involved battering and threatening to use or using a weapon.” 1
B. Joint Physical Custody Is Not Appropriate in Most Cases Involving Domestic Abuse.
Because joint custody, especially court-ordered joint physical custody, is rarely appropriate in abuse cases, a presumption would create many ongoing problems for adult victims and children alike.
In our experience, many abusive parents do not simply detach from their victims after divorce. Instead, they use their access to the children as a means to continue to harass, punish or even assault their former partners and, sometimes, the children. Joint physical custody necessitates more contact and more cooperation between the parents than sole custody. It is exactly that increased engagement that can be quite dangerous for both victim parents and the children.
Ample research supports our experience. A large study done in Washington State in 1998 reported that joint physical custody in high conflict families is detrimental to children, does not meet the goal of fostering better communications, and can even make the situation worse for children in those families. In fact, experts in the field agree generally that ‘one size fits all’ approaches to developing post-divorce parenting arrangements are inappropriate and maybe harmful to some families. Johnston, Kline and Tschann’s longitudinal research on the subject shows that children who are court-ordered into joint custody in highly conflicted families and in those where there has been domestic violence are negatively affected and are likely to be more emotionally disturbed as a consequence. It also shows that when both such parents have frequent access to their children, verbal and physical aggression between the parents is likely to increase and their children get caught in the conflict. 2
C. A presumption will hand to parents who are perpetrators of domestic violence a very effective tool with which to continue their controlling and punishing behavior long after separation.
The threat to obtain joint physical custody, made viable by a joint custody presumption, will be used by many abusive parents to gain tactical advantages in custody and child support negotiations. The result will be to force the protective/dissenting parent to settle for lower child support awards and other conditions detrimental to the children.
D. Joint physical custody is not appropriate, even in non-violent families, unless the parents agree and the child will be able to thrive under those conditions.
Parents who are not cooperative from the outset do not have a good prognosis for developing successful joint custody arrangements over time. Research comparing the success of joint physical custody arrangements for (1) parents who initially agreed to joint custody, (2) those who agreed to joint custody after negotiation and mediation, and (3) those whose joint custody was imposed by court order showed that the more court involvement, including mediation, the less successful were the joint custody arrangements. A year following a joint custody agreement, only 27% were successful in their joint custody efforts. The children who adapted well were those who had joint custody agreements negotiated by parents outside the legal system.3
Judith Wallerstein, who is among the most respected psychologists doing longitudinal research on children of divorce, concludes, "(c)hildren raised in joint custody arrangements that result from a court order in the wake of bitterly contested divorces seem to fare much worse than children raised in traditional sole custody families also torn by bitter fighting." Furthermore, she asserts that "there is no evidence that joint custody is best for all, or even for most, families." See Second Chances: Men, Women and Children a Decade After Divorce, Judith Wallerstein, Houghton Mifflin (1996), pp. 271 273.
In their 25 year follow up on the study, Wallerstein, Blakeslee and Lewis again stated that joint custody is not only not a magic bullet, but may be positively harmful to some children. See The Unexpected Legacy of Divorce; A 25 year Landmark Study, Hyperion (2000), at pp. 217 219.
In another study, psychologists who did longitudinal research on 2,500 children over 30 years concluded, "(i)t is the quality of the relationship between the non residential parent and child rather than sheer frequency of visitation that is most important. . . . Moreover, visits from an alcoholic, abusive, depressed, or conflict prone parent do nothing for a troubled child, except possibly make the child more troubled." 4
E. A presumptive joint custody law will increase litigation.
Instead of lessening conflict between parties, such a presumption is likely lead to more post-decree litigation. Abusive parents will use the law as a club with which to force their partners to agree to joint physical custody. Abusers are also more likely to litigate the matter than under current law. Both factors will result in even more court orders for joint physical custody. But because such arrangements will often not work for the children, post decree litigation will be necessary in ongoing efforts to clean up the mess. A surge in custody litigation and post-decree motions will cause a significant increase in expenditures by the courts, the parties and, in the end, the children.
The experience in California, which moved away from presumptive joint physical custody after several years, demonstrated that post decree litigation had increased under operation of the presumption. Another study (in Oregon) of the effect of joint custody showed that "[presumption of joint custody] legislation increased the number of motions to modify or enforce parenting time or child custody... the number did increase significantly (and almost doubled) following enactment of the statute. Most of these motions were to change custody or visitation, not to enforce parenting time... If the desire of the legislation was to make it easier for unhappy parents to enforce their visitation time, its purpose was clearly not met.” And “(m)andatory joint custody, or even a movement in that direction, seems to cause a number of other problems that perhaps its proponents did not anticipate. Unfortunately, the biggest winners, at least in Oregon, seem to be not so much the traditionally non-custodial parents, but rather the mediators and, slightly less dramatically, the divorce attorneys." 5 \
F. A statutory exception for domestic violence cases will not suffice to keep those cases from being forced into joint custody arrangements.
Many victims of domestic violence, even when asked, do not disclose the fact of the abuse to their attorneys. Fear, embarrassment and a desire to move on and away from the violence are only some of the reasons.
In another segment of cases, abuse cannot be proven even if alleged because there exists no evidence beyond the testimony of the victims.
Increasingly, family law litigants are pro se. Unrepresented victims of domestic abuse will not understand that the presumption does not apply in their cases; they will stipulate to joint physical custody under pressure or threat of violence or loss of custody. Their abusers are more likely to have the financial ability to hire attorneys to litigate the issue. Under those circumstances, even though the arrangement will not be in their children’s interests, victims will capitulate.
The proposed legislation would radically change Minnesota law for no valid reason and despite ample evidence that it would harm children. Minor children who have lived with a parent who uses violence, threats and coercion to control and intimidate the other parent have enough to worry about without being forced to live with a high level of contact and conflict between their parents. Adult victims of abuse need safety and separation, not danger from and increased engagement with their former partners. Backed by research and experience in other states, there is ample evidence to show that children would be hurt by such a joint physical custody presumption. And the children who would be most hurt would be the children with parents who are physically or emotionally abusive.
The Domestic Abuse Committee thanks the Joint Custody Study Group for its consideration of these concerns and strongly urges its members to convey them to the Legislature.
This is the written testimony on behalf of the Domestic Abuse Intervention Programs.
Findings of abuse as defined by M.S.A. § 518B.01 only occur in small percentage of dissolution and custody cases.
This presumption leaves the burden of proving domestic abuse on the victim at a time when she is mostly likely to be concerned for the safety of herself and her children, she is in a transition period in her life, and she is not likely to have information or evidence to prove that domestic abuse occurred.
This presumption may have negative impacts on victim’s seeking protection orders. It means that all victim’s with children need to seek a finding of abuse, which requires a hearing (in some cases this is a huge burden) and district court judges may become even less willing to award temporary custody through protective orders because of the joint physical custody presumption. Additionally, there are concerns about victims who receive protective orders without findings and how they will be expected to navigate presumptive joint custody.
This presumption gives unidentified batterers a court sanctioned mechanism for further abusive and control over their partner.
Victims may fear to leave abusive relationships if they know that their batterer will have joint physical custody and an avenue to harass and control them after they leave the relationship.
Joint custody awards typically require that parents cannot move or leave the state with the child. This means that victims may be forced to choose between their having their children some of the time or being free from violence and control.
Some battered women end up with criminal charges or protective orders against them because batterers as a result of domestic violence. A criminal charge or an OFP with a finding would exempt them from this presumption, to what end?
This presumption would mean that a parent seeking a change of custody must show that the other parent is a danger to the child. One custodial parent can harm and harass the other without actually being a threat to the child or children. This concern is heightened in domestic violence cases, but present in all cases where parents are antagonistic towards each other in the process of separation or child rearing.
This presumption will create an increase in false reporting to child protection in an attempt to show the other parent is a danger to the joint child(ren).
Differences in definitions of and expectations about what joint physical custody means can create problems and arguments that lead to unreasonable arrangements that are not in the best interests of the child and increased litigation to settle the disputes. Allowing this presumption to take effect during paternity actions is practically an invitation for ongoing, bitter litigation about the manifestation of the presumption of joint custody.
This presumption ignores the actual best interest of the child(ren) and doesn’t even provide inquiry into those interests.
This presumption has the potential to eliminate child support obligations under the current child support guidelines, which could have drastic impacts on children.
Joint physical custody works only in a small amount of cases where the parents have exceptional communication skills and a high level of cooperation. These factors are not present in the majority of cases.
Domestic Violence Response Team
Family Crimes Unit
Please keep in mind that parental/custodial issues arise in different contexts. Private family law attorneys deal with dissolution actions in which both parents arguably have established strong emotional relationships with their children.
Most child support offices, however, deal with parental/custodial issues arising from an adjudication of paternity, either by signing a recognition of parentage, or through a more formal judicial adjudication.
My experience with these latter kinds of cases after 14 years of practice in the child support area is that in the majority—even vast majority—of cases the male parent shows tragically little interest in their child beyond the strictly financial issue of child support.
Yes, statistics show that a parent is more likely to pay support when they have a relationship with their child, but this should not translate into an assumption that a male parent whose connection with a child is merely biologic should have presumptive physical custodial rights.
On the other hand, much could be done to make access to a child through the establishment of parenting time easier that it is today, particularly in the ironic situation where a male parent actually finds little or no reward in acting proactively by signing a recognition of parentage.
Thomas P. Kelly
Senior Assistant County Attorney
Dear Study Group:
I am submitting this statement in opposition to a presumption for joint physical custody.
I am the father of two and an attorney who has been in practice since 1986. I represent men and women nearly equally. I have appeared in about 30 of the Minnesota Counties. I do not limit my work to any specific location or issue, aside from having my practice focused on family law for the past ten years.
There are some counties such as Anoka, where the results are perceived by the bar to be varied from the results we can accomplish in other counties, especially with respect to joint physical custody. In most instances, including some in Anoka, parents who should get joint physical custody can get joint physical custody. I have persistently heard rumor around the practicing bar that Anoka refuses more joint physical custody plans than they should. I sat at the public hearing last year on this issue when it was decided to undertake this study.
There was testimony from people from Anoka favoring a presumption of joint physical custody. For this reason, I would discount testimony about Anoka County as I believe Anoka is not representative on this issue. Assuming for the sake of analysis that such rumor is true, and that cases meriting joint physical custody do not get it, the tail should still not wag the dog, and we should not pass state wide presumption over one or two counties. Self reporting of cases, and what that custody arrangement should be, is inherently unreliable. Custody of a child should turn on what is best for the child, as opposed to what the parents think is best for the child.
Parents see from the perspective of their subjective relationship to their child. This may be too intense a connection to be intellectually neutralized. A judge’s objectivity is needed. I suggest that testimony from individuals about their own case, or that of their significant other, where we do not also hear from the opposing parent, should be discounted for subjective bias. We should not adopt a presumption for all future cases based upon people’s partial perspective of their individual cases. Determining custody is the process of dividing parenting duties. Joint responsibility for the result of parenting does not mean absolute equality in all duties. Intact parenting teams often include individuals with focused and unique skills and duties but always with an interest in the ultimate success of the team effort.
The goal is properly raising the child. It is not sharing the child equally as if the child were a chattel. The custody inquiry needs to see if the team can still act as a team to achieve the parenting goal. People believe that joint physical custody implies nearly equal time for each parent. Although joint physical custody is not always equal time, it implies more than traditional parenting time, yet traditional time schedules may be best for children more often than any other schedule.
The focus should be on children and a presumption that parents should have nearly
equal time erroneously focuses upon parents. Children are least culpable and least capable to endure hardship, so if anyone should receive less than perfect results the adult should shoulder injustice before the child should. A good system may still have some imperfect results. Maybe an incremental approach will help us to achieve an appropriate balance. I suggest that judicial affirmation of joint physical custody arrangements contained in stipulated parenting plans should not be withheld without specific and detailed judicial findings on the 17 statutory joint custody factors.
-- Glen A Norton
Having practiced family law for 13 years and been a judge for over 24 years, I am not in favor of a presumption of joint physical custody. Although I believe joint physical custody is appropriate in many cases, I believe it is not in a majority of the cases. It really needs to be addressed in each case when it is requested. For joint physical custody to work, the parents need to be able to work together in the best interest of the children. I think we need evidence that they can do so, or have been doing so, before we should even approve joint physical custody. I don’t think we should have a presumption which shifts the burden to a party opposing joint physical custody to prove it won’t work.
With respect to a presumption of joint custody, I think this is a very bad idea. Unless people agree to joint physical custody, they are not candidates for it. To presume that it is in a child’s best interest would be to presume divorcing couples have an extremely high level of cooperation. Extremely high levels of cooperation rarely exist in divorce cases. The fact that they cannot cooperate is one of the reasons they are getting divorced.
Second, from a support standpoint, unless both couples work and have very good incomes, providing two good homes in the same neighborhood, and providing a standard of living similar to what the child had prior to her parent’s divorce, is impossible. I think this “presumption” is parent focused and not child focused. Most children that I have dealt with want to stay in the family home and have their life continue with the least amount of disruption. They want their parents not to fight about them or about money. The child’s focus is not an equal division of his/her time between the parents. It is about surviving the divorce and having the same home, school and friends as before the divorce. The usually want to see both parents a good amount of time, but not if it disrupts their school, activities or peer relationships.
It is hard enough maintaining this for children with the new child support guidelines. With a presumption of joint physical custody the fighting between parents would increase, more children would be caught in the middle, and the standard of living for the children (the ones we are supposed to be watching out for) will go down. Some parents will be happier. One would have to question their motivation.
The current law allows the judge to assess the entire situation for each child in the family and make decisions appropriate for each child. It works relatively well for the children. So why would we change it?
Thanks , Kathleen M. Newman, Attorney
Hi. I'm a volunteer mediator with Community Mediation Services. I previously worked as a judicial law clerk for several years in Wright County, so I dealt with many custody cases in the past. I'm also a mother of two.
I'd like to add brief comments regarding the question of whether there should be a change in Minnesota laws that would create a presumption of joint physical custody. My understanding is that children do better with the consistency of being in one home most of the time, with a predictable schedule of visitation, in a substantial amount, with the other parent. Unless there are studies showing otherwise, I think this is how the system should be set up, in the best interests of the children.
-- Laura Johnson
1. Should there be a change in Minnesota's custody laws to favor a presumption of joint physical custody?
Clearly and unequivocally, NO.
Custody issues are difficult enough when the parties are cooperative. Requiring a presumption of joint physical custody may very well result in one parent simply taking the position that joint custody is my right, and I don’t have to cooperate with you on anything. I’ll parent the child the way I want when the child is with me, and you go ahead and do your thing when the child is with you.
I have a very troubling case several years ago. The children were teenagers. The parents each sought sole physical custody of the children. When asked if the Court could not grant them sole custody, would they want joint custody or sole custody in the other parent. Each said joint custody. I was hopeful that the parents would cooperate once the court proceedings were over. I was wrong.
The children were subjected to emotional distress of being in joint physical custody with parents who did not agree to that arrangement for about 18 months before it was back before me and I could rectify my mistake.
I have no problem with a law that requires a judge to set forth his or her reasons why joint custody is not appropriate in a particular case, but I do have a serious issue with requiring a presumption of joint physical custody. (The parents’ failure to agree on a joint parenting arrangement would have to be a valid reason to reject joint physical custody.)
2. What are the pros and cons of the state adopting a presumption of joint physical custody in law?
See comments to Number 1, above.
Minnesota law has, and ought to continue, to hold that the best interests of the child(ren) ought to be the primary determining factor in determining custody issues. I would challenge anyone to produce scholarly studies that show that joint physical custody is, per se, in the best interests of the child. My experience as a trial judge for over 20 years would belie any such study.
While I have no desire to testify or appear at any hearing, I am certainly willing to supplement these remarks in any appropriate way.
Judge Thomas G. McCarthy
I oppose a presumption of joint physical custody. Such a presumption is not in the best interests of children. Over my years on the bench I have found that most parents do not get along well enough to have such an agreement which is why they are no longer married or living together. Children are not served well by an agreement which requires every decision to be jointly made and presumes that children should spend equal amounts of time with each parent. Parents often live many miles apart which does not allow such an arrangement to work. Further it brings additional conflict into the lives of children. A significant number of joint physical custody agreements have ended up back in court because parents do not agree. I believe such a presumption will cause more contested custody cases. Typically one parent has been the primary parent caring for the children. It is also inappropriate for cases in which domestic violence is an issue. A presumption of joint physical custody is designed more to meet the emotional needs of a parent who can claim they did not “lose” custody than it is to ensure children’s needs are protected. –Judge Lois Lang
The label of “custody.” The first thing I do in an ICMC is try and eliminate that title and talk about time with the kids. Parents seem to accept that much better and are then more likely to be able to reach an agreement that they feel is really in the best interest of the children
Few parents are able to agree on enough important factors, however, to have any kind of true joint custody—at least as that term used to be defined. Some are, however, and seem to do a good job. Sadly, however, I also think the percentage that do are much fewer.
Having practiced in the field of family law for many years I can assure you there are VERY FEW people who get along well enough to handle a joint physical custody arrangement. By making this the presumed arrangement, you are sacrificing the kids just so the parent can get that label in the final paperwork. This is a bad idea.
--Judge Mary Leahy
Joint physical custody is certainly an ideal situation for children (that is having both parents continue in the parenting process on a roughly equal basis), however, it is only ideal when both parents have the willingness and fortitude to put aside the obvious issues that brought them to the dissolution in the first place, and proceed with a high level of communication and cooperation.
My personal observations are that the percentage of parents, who fall into this category, is significantly lower than 50% and may be more in the range of 10%-25%. By making joint physical custody the norm, (i.e. presumption), we are doing a disservice to more parents and children than the present criteria does. My perception and experience is that an insufficiently thought through joint custody agreement produces more, not less, confrontation, litigation, and hardship for the children. I would strongly oppose instituting the joint physical custody presumption.
Joint custody is just another label that causes parents to get fixated on getting something out of their custody fights. The real issue is hardly ever custody itself. It’s about parenting time and the opportunity to be a part of the children’s lives. Other states do have a presumption of joint custody (California, for example) but I don’t know how their systems work. Any presumption is not going to change the reality that Judge _________so aptly describes.
– Judge Birnbaum
I have a couple in front of me this afternoon who got divorced in ’04 and this will be the third parenting time assistance motion I’ve heard since the divorce. Sadly, I have a number of couples like that whom I see on a regular basis on post-dissolution motions. Joint legal custody is totally inappropriate for these couples. I would be opposed to any legislation that would limit a judge’s authority to make these kind of decisions on an individual case by case basis.
--Judge Terry Walters
I write to oppose any change in the Statute to reflect a presumption of Joint Physical Custody in family cases. To give a brief background, I practiced in the family law area for 15 years and have spent 14 years thereafter as a District Court Judge, handling numerous/hundreds/thousands of divorce/custody/visitation cases. To be blunt, joint physical custody rarely works in the real world. It sounds great for the parents(mostly for the Dads) and to the politicians, but it simply does not work except in about 5% of the cases…
If there is any prior physical abuse, the parents cannot/should not be required to cooperate in a joint parenting scheme because of the imbalance of power issues;
Most couples get a divorce or separate, if not married, because they cannot communicate in the first place or refuse to do so;
Parents have to have almost identical ideas and philosophies about raising children or else their parenting styles will be completely different and inconsistent with each other….the kids figure this out easily and start playing the parents against each other. I have had many who ran to the other parent when the discipline got too tough with the other. Kids need CONSISTENCY. Such children often end up in front of us Judges with attitude/Chips issues, truancy, chemical or criminal issues. The children simply do not know where they live and have no center in their lives. Check out the long term study in California about JPC ! The more often they switch the kids, the more difficult it is for them. I get many couples who request jpc in pro se dissolution cases(it is the latest fad) and when I ask them about the joint custody factors they rarely meet any of the criteria…some barely talk to each other(some not at all) and are not capable of joint parenting even if they truly wanted this. Many of these cases involve females (mostly) who wish to placate their stronger(either physically or emotionally) male partners…Both parents usually fail to understand what is required and usually change this designation after it is explained to them. There has to be almost an equal emotional balance of power in the parents’ relationship before this ever works…;
There are/can be issues later with jpc…what happens if one of the parents moves? Especially out of state?!;
What school does the child attend if the parents live in two different school districts?!;
Children usually have a stronger attachment/bond with one parent and this can be disrupted if forced to spend time equally with both parents;
I would say the majority of parents that I see in Court are poor parents in terms of their ability to care for and properly raise kids…to assume that both will be now jointly involved in co-parenting would bring the quality of parenting down and would give the parent with little or no skills/desire to parent much more authority and control than they should have (or ever did during the marriage);
As the kids age in their teens, they often end up calling the shots in these arrangements re: who they spend time with, recreation, vehicles,etc….this results in spoiled, self-centered,entitled children…some parents resort to bribery to ingratiate themselves with their own children…;
Finally, someone has to make difficult decisions about raising these kids…who is going to do this if the parents disagree?…Judges….which will increase an already overloaded Judicial system…do you really want us to decide where the kids go to school, which Doctor to use, whether Sally should join YO volleyball, etc….??? ;
I could go on with the difficulties. Most Judges that I know would be in agreement with my position, I believe. The bottom line is that this whole idea has probably been proposed by people(politicians) who have NO experience dealing with these issues on a daily basis…Several constituents probably complained with anecdotal information about an aberration in their own divorce and they are now caught up in changing the parenting label (without understanding the realities of such a change). Thank you for reading this.
Judge David R. Battey
The nature of my concern is about changing the custody laws in the state of Minnesota to presumptive joint physical custody, specifically in the cases of domestic violence. My specific case involves my infant son receiving a brain injury from his father while I was out of the house for 20 minutes (13 years ago). Due to the complexity of this “case”, my ex husband was never prosecuted for this assault. While I have always had supervised visitation (or supervised him myself) in place since that time: he still retains joint legal custody: something that should have been terminated a long time ago. He has not seen the children in 5 years, since the court jailed him for non-payment of child support.
If there were a presumption of joint physical custody at the time of my divorce, my children would have been placed in direct physical danger; possible abduction (he holds foreign passports on the children) possibly death. He is a non- citizen or resident of the US.
--Julie Ann Moylan
I am an attorney and single mother of 2 children. I had joint custody with my first child and sole custody with my 2nd child. Joint custody was very difficult for my son and me and I dread the thought of families being forced into a joint physical custody situation. Joint custody should only be an option, not mandatory, for parents who get along well enough to make joint custody work, which I believe is the exception.
Dear Members of the Joint Physical Custody Study Group
Hello, I would like to provide oral testimony to the Joint Physical Custody Study Group because I feel that my case meets the criteria you are looking for and that my experience will be of value to the study group as they deliberate the impact of presumption of joint physical custody and its impact on children.
I was divorced in 2002 and was awarded joint legal custody and sole physical custody of my then four year old daughter Mikayla. Mikayla’s father, John, had a parenting time schedule from 7:30 a.m. until noon on Mondays, Wednesdays, and Fridays.
He would then drop her off at daycare on those days and I would pick her up around 5pm after work. He also had parenting time every other weekend from 9:00 a.m. on Saturday until 5:00 p.m. on Sundays. This schedule changed often because his work schedule kept changing. John had over 50% of the parenting time and spent more quality time with our daughter. A lot of my time spent with Mikayla was when she was sleeping during the night. I “agreed” to this custody parenting time arrangement because I felt I had no choice. John’s plan was to watch her every day until he went to work & find someone to watch her for 3-4 hours each day. He wanted to pull her out of daycare & I didn’t feel that was a good plan. Mikayla was in a private home being cared for and she loved it there. I wanted to prepare her for school and since she was an only child, I thought it would be good for her to socialize with other children since I was a stay-at-home-Mom for almost four years of her life. I “agreed” to this plan and that is how it was determined we’d have “joint legal custody.”
At the first temporary relief hearing, the judge/referee made it clear that the father would have unsupervised parenting time. The custody evaluator recommended this arrangement. My attorney advised me this would be the outcome if we went to trial. Despite a well documented history of domestic violence and threats to abuse me and my child, my ex-husband was allowed to have unsupervised visitation with our daughter. The court and custody evaluator were aware that my ex-husband had threatened to kill me and our daughter. There were OFP’S and filed police reports. This information did not affect the custody/parenting time decisions. It was clear to me that the domestic violence and threats to harm me and our daughter had no impact on the court.
Two years later my child was murdered at the hands of my ex-husband on September 5, 2004 during his parenting time. My experience illustrates that the current statutory exception for domestic violence with joint legal custody does not work. Having a presumption of joint legal custody has more of an impact on the family court than the evidence of violence. My personal story can help inform the study group about the power of presumptions and the ineffectiveness of having exceptions or exclusions for domestic violence.
-- Leigh Ann Olson
The Relationship between Child Support Enforcement and Parental Access
The belief that increasing a father’s access to his children will lead to better compliance with child support orders is not supported by research. In fact, it seems to be a good example of wishful thinking. This belief is also a loud and clear recognition that mothers suffer financially post-divorce.
Child support enforcement and fathers’ access to their children are related. Enforcing child support generally increases demands for paternal access and involvement in parental decision making. While many view this effect as positive, it comes at the rather steep price of increased parental conflict. The positive effect of the amount of child support payments on conflict supports concern that strict enforcement of child support may increase children's exposure to conflict between parents. The potential harm to children's well-being of increased exposure to conflict must be weighed against the benefits of increasing fathers' child support contributions, and hence children's economic security.6
But while enforcement of child support increases the likelihood fathers will seek more involvement with their children, the reverse is not true. More parental access does not lead to better support awards or willingness to pay them. So why do people persist in believing that increasing contacts with children will result in better compliance with child support? Initially, researchers simply asked fathers to explain their child support arrearages. In response, 23% of fathers responded that the reason was lack of visitation. Digging deeper, researchers explored relationships between visiting and paying child support using longitudinal studies. They concluded that increases in visitation have no effect on changes in child support.7
Fathers who regularly pay their child support are more likely to have regular contact, not necessarily more frequent contact. Regarding child support payment compliance, researchers Maccoby and Mnookin found “a strong relationship between compliance behavior and a father’s having some contact with his children. Frequency of contact did not matter as much as the fact that contact was continuing to occur.”8 These same researchers also observed that child support awards tended to be lower when joint custody was awarded, assuming that fathers’ increased time would relieve some of the financial burden on mothers. This assumption, however, fails to account for the frequent “mother drift” occurring in joint custody arrangements as time goes one. In fewer than half the children in families electing joint custody (in the Maccoby an Mnookin’s Stanford study) were spending more than three or four night with their fathers in a typical two week period. Maccoby, E. E., & Mnookin, R. H. (1992). DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY. Cambridge, MA: Harvard University Press., pages 263-264.
-- Stephanie Avalon, Resource Specialist
To: Joint Custody Study Group
Minnesota State Court Administrator
From: The Battered Women’s Justice Project
The Battered Women’s Justice Project (hereinafter BWJP) is a non-profit, national resource center that provides training and assistance for legal and justice system personnel, policymakers, battered women, their advocates, and others engaged in the justice system response to domestic violence. The BWJP promotes systemic change within community organizations and governmental agencies engaged in the civil and criminal justice response to domestic violence, in order to hold these institutions accountable for the safety and security of battered women and their children. The BWJP is an affiliated member of the Domestic Violence Resource Network, a group of national resource centers funded by the U.S. Department of Health and Human Services and other support since 1993. The BWJP also serves as a designated technical assistance provider for the Office on Violence Against Women of the U.S. Department of Justice. Given our work across the country on issues involving custody and domestic violence, the BWJP respectfully submits the following comments for the Study Group’s consideration.
1. Should there be a change in Minnesota's custody laws to favor a presumption of joint physical custody?
No. As the purpose of any custody consideration is to determine what is in the best interests of children, the answer to this question must be no. Joint physical custody is only in the best interests of children when both parents clearly demonstrate a willingness and ability to parent cooperatively. This conclusion has been supported by research as well as by the experiences of states that have experimented with such presumptions. Therefore, physical custody determinations must be made on a case-by-case basis, and should not be undermined or prejudiced by a presumption.
2. What are the pros and cons of the state adopting a presumption of joint physical custody in law?
Because joint physical custody succeeds only when informed and willing parents choose it, any benefits of joint physical custody are inapplicable in cases where parties are compelled to share physical custody.9 There are many serious problems with presumptive joint custody statutes, which have been seen in other states that utilize them.10 The BWJP discusses below only those problems related directly to the application of such a presumption to families where domestic violence is an issue.
A. Joint custody is particularly inappropriate in domestic abuse cases, as children’s needs and parental access issues are quite distinct, necessitating individual, careful and unprejudiced consideration.
Forcing ongoing contact, especially the substantial contact required in joint physical custody situations, between an abused parent and batterer creates a multitude of problems and risks for families. Joint physical custody determinations give batterers the substantial ability to continue to harass, threaten, monitor, stalk, and emotionally and physically abuse their victims. Batterers will be able to continue to exert power and control over their victims’ lives. Joint physical custody also gives batterers ample opportunity to continue to use their children as the conduits of their abuse and harassment, subjecting their children to inappropriate, stressful and possibly violent behavior. The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics, Lundy Bancroft and Jay Silverman, Sage Publications, 2002. A 1989 study of post-divorce parents in joint custody arrangements, where domestic violence was identified, indicated that children in these situations were negatively affected and more likely to be emotionally disturbed.11 Johnston, M. Kline & J Tschann (1989) Ongoing Postdivorce Conflict: Effects on Children of Joint Custody and Frequent Access,
Am. J. Orthopsychiatry 59(4) 576-592. A presumption of joint physical custody will greatly increase the numbers of families in Minnesota who would be subject to this ongoing conflict and danger.
Cutting-edge research by child custody experts and academics in the United States promotes a differentiated response to custody cases involving domestic abuse. This current approach advocates valuing the safety of the child over all other considerations, and applying differentiated parenting plans after careful consideration of the safety issues a particular case presents. Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans, Peter G. Jaffe, Janet R. Johnston, Claire V. Crooks, and Nicholas Bala, Family Court Review, Vol. 46, No. 3, July 2008. In accordance with this research, while joint custody is a laudable goal, it is also the first goal to be sacrificed in the best interests of the child, especially in light of the court’s need to keep children and abused parents safe. Id. Therefore, a generalized presumption is absolutely contrary to the best thinking in the field.
A joint custody presumption would be applied primarily to such abuse cases because most contested custody cases involve domestic violence, child abuse or serious substance abuse.
Ironically, while joint physical custody is least tenable in cases involving abuse, a joint physical custody presumption would disproportionately be applied to abuse cases, as these cases represent the majority of contested custody cases. Many studies have demonstrated that allegations of abuse are very common in contested custody cases. For example, in a study of 120 contested cases in California, allegations of child abuse, domestic violence, or serious substance abuse were made against mothers in 56% of families and against fathers in 77% of families. A significant proportion of those allegations were substantiated. Allegations and Substantiations of Abuse in Custody-Disputing Families, Janet R. Johnston, Soyoung Lee, Nancy W. Oleson, Marjorie G. Walters, Family Court Review, Volume 43, Issue 2, 283-294, April 2005. Of these contested cases where such allegations arise, the largest proportion involves “battering” (coercive controlling violence). Such statistics indicate that any presumption of joint custody will necessarily impact cases involving domestic abuse. This presumption creates a major hurdle for already-vulnerable parents and their children.
C. Creating an exception or exemption for domestic violence cases from any joint custody presumption will not succeed in keeping these inappropriate cases from resulting in a joint custody determination,
The experiences of other states informs us that exceptions do not succeed in excluding domestic violence cases from the operation of a presumption (e.g., Wisconsin, where there is a presumption in favor of joint physical “placement” of the child subject to a statutory exception for domestic violence cases). There are numerous reasons why such exceptions or exemptions fail to achieve their expected goals.
Many victims of domestic violence fear reprisal for disclosing domestic violence. Many batterers threaten their victims that if that if they disclose domestic violence, the batterer will hurt or kill the children or the victims. Some victims worry that disclosing domestic violence in the family court setting will trigger the involvement of child protective services.
Many victims might be afraid to disclose domestic violence for fear that they will not be believed, and appear unnecessarily uncooperative or vindictive, or misconstrued as an “unfriendly parent” under Minnesota law12. They fear that their allegations will be ignored by the court or that the judge will think that the allegation is nothing more than a strategic maneuver to obtain some kind of advantage in the custody case. In fact, attorneys might counsel their clients to not disclose domestic violence, for fear of triggering these misconceptions by the court. Victims also fear, justifiably, that any allegations of violence they bring to the court’s attention will be used against them by their batterers, either in the custody case or in other arenas of their lives.
Many battered parents very reasonably fear that despite indications of even very elevated battering and danger to themselves and their children, they will not be able to convince the court of the existence of the violence and how the ongoing danger will affect a custody determination. Family Court practitioners (mediators, custody evaluators, attorneys, judges) are frequently unsuccessful at identifying domestic violence or seeing its relevance to post-separation parenting. A recent study of custody cases in Washington State showed that 75% of cases had criminal or other documentation of abuse that was ignored or dismissed by court practitioners. Washington State Parenting Act Study: Report to the Washington State Gender and Justice Commission and Domestic Relations Commission, Diane L. Lye, June 1995. A 1997 survey of psychologists who serve as custody evaluators found that 90.6 percent would not consider an allegation of physical abuse of a child by a parent grounds for recommending custody to the other parent. Marc J. Ackerman and Melissa C. Ackerman, “Child Custody Evaluation Practices: A 1996 Survey of Psychologists,” Family Law Quarterly 30 (1997): 565. The most significant challenge, however, is that there are currently no effective models for assessing and screening for domestic violence in court cases.13
Additionally, many victim-parents fail to identify their experiences as abusive or actionable by the court, especially if efforts at criminal justice involvement have been unsuccessful. Furthermore, because of the private nature of most domestic violence, many victims cannot prove that it has occurred (or prove the impact on their children) by augmenting their own testimony with the collateral evidence some courts require. There is also the very real embarrassment that victim-parents endure when having to share such violent and intimate details about their relationship with the court. Finally, and not to be minimized, any efforts to share such information with the court presents the very real potential for retaliatory violence from the batterer.
Finally, a legal presumption of physical custody will be particularly difficult for indigent and pro se victim-parents to overcome, because they will lack the resources to overcome such a presumption despite the existence of substantial violence and danger. Establishing presumptions and fighting against attempts to rebut them are often sophisticated, evidence-laden processes. Parties without financial resources, and without adequate representation, are at a distinct and dangerous disadvantage in such a system.
In conclusion, a legal presumption for joint physical custody is not in the best interests of children, especially when there is domestic violence in the home. Children from violent homes will be disproportionately and dangerously impacted by such a presumption, as will victim-parents of domestic violence, who would face an almost insurmountable legal hurdle when seeking protection and stability from Family Court. The experiences of other states, as well as the experiences of victims of domestic violence, overwhelmingly demonstrate that a legal exception or exemption would not relieve or even mitigate the issues raised by such a presumption.
I am submitting this statement on behalf of the Family Law Section of the Minnesota State Bar Association. The Family Law Section is opposed to a presumption for joint physical custody. The Family Law Section believes it is necessary for courts to analyze contested custody cases utilizing each statutory factor to determine what is in the best interests of the children. It is necessary for judges to address each family on an individual basis. The effect of a presumption in favor of joint physical custody will emphasize efficiency and expediency over the individualized analysis needed to determine what is in the best interests of the children in each family.
Although the current law provides a presumption of joint legal custody, it also requires that the court must consider four additional factors when either joint legal or joint physical custody is sought. This provision in the law is for good reason: it mandates the court to assess the parents’ ability to work cooperatively as regards to co-parenting children before deciding whether to award joint custody. Family law practitioners have all had the experience of requests regarding joint legal custody failing to receive any analysis by the Court. If a parent contests the presumption, it is almost futile. The result is the award of joint legal custody when it was not necessarily best for the child. It would be a disservice to children to create the same risk as regards physical custody. If the law is changed to include a presumption favoring joint physical custody in all cases, then in situations in which parents do not work cooperatively, children will be thrown into an even more stressful parenting arrangement. Placing a child in the middle of dueling parents is never in a child’s best interests. Further, if a presumption of joint physical custody were to become the law, recall that although a presumption is rebuttable, it is far too onerous for a person of average means to challenge a presumption. The cost and time involved is an almost insurmountable challenge.
No one can deny there are problems within our family law system. It is common for parents to feel like they are not being heard. In many cases parents, especially fathers, may feel marginalized and want more time with their children. At the same time, just as many mothers feel marginalized when confronted with demands for more time with the children when the other parent’s past involvement in the children’s lives was minimal. This is particularly so when the parents are not married to one another. A presumption of joint physical custody would inadvertently gloss over situations in which the parents do not work collaboratively as regards to raising of their children. There needs to be change, but treating each case the same is not the answer.
The best interests of the children are served best when the Courts perform an analysis utilizing each statutory factor on a case by case basis when physical custody is disputed. Each family is different, each child is different, and each family deserves individualized attention to ensure that the best interests of the children are being met. A presumption does not promote analysis, but allows for a method to circumvent it even if that is not the intention. In conclusion, the Family Law Section of the Minnesota State Bar Association opposes a presumption in favor of joint physical custody because it is not in the best interests of children.
Minnesota Association of Custody Resolution Specialists (MACRS)
Dear Joint Physical Custody Study Group,
MACRS would like to briefly respond to the questions being considered by the study group on the possibility of joint physical custody being the presumptive statute in Minnesota.
The MACRS board is composed of private and public professionals working with the children and parents involved in custody and parenting time disputes. We are family law attorneys, custody evaluators, mediators, guardian ad litems, and parenting consultants.
Two questions were posed, and we have responded with one statement addressing both parts:
1. Should there be a change in Minnesota's custody laws to favor a presumption of joint physical custody?
2. What are the pros and cons of the state adopting a presumption of joint physical custody in law?
It is our belief that Minnesota should NOT adopt a presumption in favor of joint physical custody.
While the active involvement of both parents in a child's life is critical, and should be given significant weight in any parenting time decision, many other factors are also critical to children's well-being. Families struggling with chemical addiction, mental health issues, power imbalances, and domestic abuse all warrant caution, as do families with distance between their households, poor conflict resolution skills, very young children, and children having physical, emotional, or education struggles themselves. An equal or near equal sharing of time between households requires consideration of all these factors to ensure a positive environment for children. The issue is complex and a sweeping assumption that equal or near equal time with parents trumps all other factors does a disservice to our children.
In many respects labeling physical custody in any form is problematic and inhibits peaceful resolution of these issues for families. We encourage the study group to consider eliminating physical labels entirely, and instead focus on applying best interests factors to parenting time schedules that allow consideration of each family's unique needs and circumstances.
Respectfully, Minnesota Association of Custody Resolution Specialists
2008 Board of Directors
Kay Kraus Jennifer Livingston Rojer Lynn Johnston
Co-chair Co-Chair Secretary
Private/Minneapolis Hennepin County Todd County
Brad Dawson Angie Banga Carol Breimhorst
Membership Treasurer Director
Todd County Private/Minneapolis Rice County
Susan DeVries Doneldon Dennis Heather Feikema
Director Director Director
Private/St. Paul Private/Mendota Heights Private/Albert Lea
Robert Sierakowski Jacqulin Sebastian
Ramsey County Private/Duluth
Mark; thank you again for permitting me to speak to the committee. I want to reiterate my opposition to the creation of a presumption in favor of joint physical custody. At a time when custody rarely becomes a battle any longer this step would dramatically increase litigation and harm to families.
Nancy Berg, Attorney at Law
From: Range Women’s Advocates
Regarding: Presumptive Joint Custody
I am writing in regards to the debate of father’s receiving a legislative right to presumptive joint custody. I am a domestic abuse survivor and my abuser was my former husband, the father of my daughter. During our marriage, I was under the complete dominance of this man. He controlled every aspect of how I looked, acted, dictated where I could go, whom I could talk to, among many other things. I finally left him in May 2008, when he threatened to kill me with a gun.
We were officially divorced December 13, 2006, but the power and control still continues to this day due to him receiving joint physical and legal custody. I was pressured into ‘giving’ my ex-husband joint physical and legal custody by a mediator whom we went through for our divorce (mediation should never be considered when domestic abuse is a factor). When you are the victim of such a powerful control, nobody really knows the lasting effects it has on your life. Not only did I feel pressure from the mediator to make this decision, but the looks, and subtle actions of my abuser forced me into my situation today.
Giving my abuser the power of joint physical and legal custody has forced me to live my life under his reign. My daughter is now 5 years old and he still tells me when I can/can’t see my daughter (even though I am her primary residence). Controls the phone and doesn’t allow me to talk to her when she is in his care as a way he can still ‘punish’ me (it was written in our divorce decree, under our parenting plan, that phone contact with other parent is a must), Tells me how to take care of her (his way of course), what activities she will take part in (I have no say, or very little), and most of all -allows him to have more frequent access to me on a more consistent basis.
I would like to see a stop to the presumptive custody. I feel that I am trapped under his reign for the next 13 years, and for it to only get worse as she gets older. I am strongly against it.
Thank you for your time.
Range Women’s Advocates
Dear Joint Custody Study Group Members,
I am an attorney and mother of two. I have experienced both joint physical custody and sole physical custody as the custodial parent. I submit this letter in strong opposition to a presumption of joint physical custody. I believe such a presumption is inappropriate and detrimental to families involved in custody disputes.
Every case in family court is unique. The feasibility of joint physical custody must be examined on a case by case basis. It takes exceptional circumstances and individuals to make joint physical custody work. Both parents have to be truly able to “co-parent.” Unfortunately, this is not the situation in most custody cases. A couple usually separates and goes to court because the parties cannot get along. It would be ideal if parents could overlook the problems and hostilities that led to the separation in order to make joint physical custody work, but this is a lot to expect from human beings. In those cases, where the parents can co-parent, they would most likely agree to joint custody anyway, and a presumption would not be necessary. If the parents cannot agree to joint physical custody, requiring them to rebut such a presumption places an unnecessary burden on everyone involved.
Parents who have joint physical custody should have similar parenting philosophies, should live near one another, and should be able to provide everything the children need in each home and for every transition (e.g. homework, band instruments, etc.). They should be able to cooperate regarding extra-curricular activities, such as music lessons or sports. In my own situation, my son had to drop out of band at school, because he could not remember to bring his instrument back and forth between both houses, and his father would not bring it to him. Also, my daughter cannot be involved in some activities she would like, because her father will not bring her to them during “his time.”
It is very important for children to have a “home base,” i.e. one place they can call “home.” They should have one home where they spend most of their time, one address to give out to friends and write down on forms, one home where they have their closest friends and most of their “stuff,” near their school, in one neighborhood. There’s no question that divorce or separation is detrimental to children in some way, regardless of the outcome. The real harm comes when the noncustodial parent disappears from the child’s life. There is no reason a noncustodial parent cannot be an involved and loving parent, having frequent contact with the child(ren) without having half the time and requiring the child to bounce back and forth between the parents.
Too often child custody battles turn into mudslinging contests and parents compete to try to “out-parent” the other. In my opinion, the most important question is: who is the primary parent? This should not be a question of who is the “better” parent, but rather, who does the child look to the most to meet his/her daily needs? This also should not be about mothers’ rights or fathers’ rights, but rather, what is in the best interests of the child(ren). Unless there are abuse and/or chemical dependency issues, the parenting arrangement that was acceptable between the parents during the marriage/relationship should be acceptable after divorce or separation. This is fair to everyone.
I am against a presumption in favor of (or against) joint custody. I have been practicing Family Law for 25+ years. I have also been a mediator of Family Law cases for 17+ years.
-- Dan O'Connell