With custody labels having much less significance than in the past, parenting time – previously called visitation – is the issue that parents and lawyers spend a lot of time addressing in divorce decrees.
Minn. Stat. Sec. 518.175 addresses parenting time, requiring the court to grant parenting time that enables the child and parent to maintain a relationship that will be in the best interests of the child.
In crafting a parenting time schedule, the court is required to consider the age of the child and the child’s relationship with the parent prior to the divorce. The statute also provides that in the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive a minimum of 25 percent of the parenting time with a child, with the percentage often determined by the number of overnights a parent has with the child. The court may reserve a determination of a future expansion of the parenting time schedule, again based on the best interest standard, including the consideration of a child’s changing developmental needs, particularly as they grow older.
Often, when crafting the initial parenting time schedule, parents look at the age of the child, the child’s school and day care schedule and their individual work schedules. All of these considerations change over time, requiring reasonable parents to modify the parenting time schedule as circumstances change.
It is important when preparing a judgment and decree to include methods to address disputes about parenting time. Many decrees include a provision for a parenting consultant to be appointed to assist parents with child-related issues, including modifications to the parenting time schedule. The parenting consultant will attempt to assist the parties in reaching a resolution, and if agreement cannot be reached, the parenting consultant will make a decision about modification. While the parenting consultant’s decision can be modified by a court if a motion is brought in a timely manner, it is rare for a court to modify such a decision. Other divorce decrees include a requirement for mediation to address parenting time modifications.
When a court must address parenting time modifications, it is guided by Minn. Statute. Sec. 518.175 Subd 5, which requires the court to modify the parenting time schedule if the modification would serve the child’s best interests and would not change the child’s primary residence.
The recently published case of Shearer v. Shearer provides some insight into how parenting time modifications are viewed by the court. In the Shearer case, the parties were divorced by a stipulated judgment and decree. The judgment and decree granted the parties joint legal and joint physical custody of their twins, with an equal division of parenting time on a schedule to coincide with father’s work schedule, with father exercising his parenting time when he was not working and mother exercising her parenting time when father was working or traveling out of town.
While this might seem reasonable at first blush, the father was a commercial airline pilot and was able to bid his schedule as he wished. The father bid his schedule so that he worked during the week and had weekends free, so he had parenting time every weekend. The mother, who worked during the week, was rarely ever able to exercise parenting time on the weekends. In her motion for modification of the parenting time schedule, she argued that during the week the children were in school, she worked during the day, and that the limited after work/school weekday time was taken up with homework, extracurricular activities and errands, leaving her with no “downtime” to spend with the children. The mother wanted the father to be required to rearrange his work schedule so that she had two weekends a month with the children. She did not request that the equal division of parenting time stipulation be changed. The trial court granted her request, finding it was in the children’s best interest to maximize their time with both parents and that this could best be accomplished by allowing both parents weekend time with the children.
On appeal, the father argued that the district court erred when modifying the terms of the parties stipulated judgment and decree without a finding of “changed circumstances” citing the Matson case. The appellate court noted that the changed circumstances requirement in Matson was only necessary where the court was modifying the parenting time schedule and restricting parenting time. Noting that several unpublished cases may have misapplied the Matson holding, the court specifically holds that where modification would not restrict parenting time, a district court may modify parenting time if the modification is in the best interests of the child. In affirming the modification in Shearer, the court noted that the district court specifically noted that its modification was not a restriction of ether party’s time with the children.
The district court also modified the father’s child support obligation based on its finding that even though the judgment and decree grants him equal parenting time, he failed to exercise all of his allotted parenting time. The appellate court held that parenting time, for the purpose of the parenting time adjustment in the guidelines child support calculation, is determined by the terms of the court order scheduling parenting time, and reversed and remanded the district court’s modification of child support. A careful practitioner will take heed of this holding in drafting judgment and decrees. Kathleen M. Newman
