If a couple with children separates, and one of the parents is alcoholic or chemically dependent, should the family court:

a.    Terminate the addictive parent’s parental rights;

b.    Restrict and/or supervise the addictive parent’s parenting time;

c.    Condition the addictive parent’s parenting time on his or her sobriety; or

d.    Leave alcoholism or chemical dependency out of the custody and parenting time decision altogether?

It depends, but in nearly all cases, options (a) and (d) would be ruled out.  Option (d) is too extreme.  The family court needs to address the totality of the child’s circumstances in order to determine what is in the child’s best interests.  There is no way to comprehensively consider the child’s best interests if a parent’s addiction to drugs or alcohol is ignored.

Option (a) is too extreme in the other direction.  If an addictive parent’s parental rights were terminated, there would be other factors involved, such as criminal or abuse issues, persistent neglect of the child, the posing of significant danger to the child, or repeated failure to seek treatment for his or her addiction.

Option (b) is the most likely scenario if the addictive parent is not properly addressing the addiction, or is in the preliminary stages of recovery.  Restrictions and/or supervision are necessary to protect the child from the potential risk of being in the care of an impaired parent.

Option (c) is the common arrangement if the parent has learned how to manage his or her addiction. With proper management of addiction and sustained sobriety, the custody and parenting arrangements can be normalized.  There may need to be a backup plan for both parents to follow in the case of a relapse. Better still is a parenting plan with healthy co-parenting and communication that encourages the addictive parent to self-assess or self-report if his or her sobriety is tested or threatened, so that he or she is in no way deterred from doing the right thing for the child.  It is really no different than the circumstances of any child whose parents must rise to the occasion when coping with an emergency situation.

Being alcoholic or chemically dependent should not serve as an automatic disqualification for a parent to have primary custody or liberal parenting time.  Many parents who have overcome addiction are as equipped, or better equipped, to care for children as a parent who has not met those kinds of challenges. Consider a child whose parents are both addicts.  Option (c) is a necessary component in those circumstances, and the parents’ mutual accountability for sobriety is paramount.  Otherwise, the child is, by default, living in unsafe and uncertain circumstances.

There is no simple or quick answer to the questions that arise when child custody and parenting time are determined in cases of one or two alcoholic or chemically dependent parents.  If the issue is given proper weight, neither amplified nor ignored, the children are given the safe and secure living environment that they deserve.

In recent years there have been multiple attempts to create a legal presumption in Minnesota that a child should be in the joint physical custody of the child’s separated or divorced parents.  This year, there is a bill that reflects a renewed effort to pass a “JPS law” in Minnesota.

What needs to be realized in the debate over a JPS law is not merely the importance of the presumption question, but also two very important issues: (a) how the presumption is rebutted and (b) the wide discretion of the family court.

The bill currently proposed to address JPS requires the court to award joint physical custody in a contested custody case unless one parent proves by clear and convincing evidence that the other parent is unfit in a manner that would cause substantial harm to the child.  The law’s impact would be on cases where (a) the parties are not in agreement about the custody arrangement and (b) there is no compelling evidence that the child would be substantially harmed by joint physical custody.  Family court judges that would otherwise give one parent primary custody would be prevented from doing so, because the presumption would not be rebutted.

The implication of this is to substantially curtail the family court’s discretion, which has repeatedly been ruled by Minnesota appellate courts to be very wide.  Minnesota family law holds a child’s best interests to be a paramount consideration in contested family court disputes.  Oftentimes, it is THE paramount consideration.  This is antithetical to the notion of a presumption – particularly a presumption that can be overcome only by clear and convincing evidence.  Every family is different.  Every child of divorced or separated parents has a unique experience.  So the practical reality is that a presumed custody arrangement will have as many exceptions as it has cases that conform to the presumption.  The rule-or-exception quandary must be resolved in some way; consequently, the family court cannot be divested of the authority to make that determination.

Where the proposed law’s equation breaks down is the application of a clear and convincing evidentiary standard to find “substantial harm” to the child.  When the establishment of joint physical custody is more important than preventing minor harm, or even moderate harm, to the child, the paramount importance of the child’s interests necessarily gives way to a different philosophy.  The proposed bill expressly seeks to establish a new “public policy.” The proposed public policy would necessarily alter the existing emphasis on the paramount importance of the child’s best interests.

In the end, with or without the proposed law, many children will be in the joint physical custody of their parents – for very good reasons.  And many will not – for very good reasons.  Nothing will change the wide discretion of family courts, because no public policy will alter the fact that families and children vary widely.  So even if the law passes, its most fervent proponents will be foiled by the diluted application of the term “substantial harm” to create custody arrangements that are more often the exception than the rule.

When child custody is disputed, it usually comes down to three things: (a) the label, (b) the impact on child support, and (c) the actual schedule.  If someone wants joint physical custody, it is because (a) they like the idea of telling other people they have “joint physical custody;” (b) they want to pay less child support, or (c) they actually want to have the children in their care about half the time.  If someone wants sole physical custody, it is because (a) they like the ideal of telling other people they have “sole physical custody;” (b) they want to receive maximum child support, or (c) they actually want to have the children in their care most of the time.  It can be surprising how often the dispute is NOT about the actual schedule.

Typically, the label matches the support calculation, which matches reality.  But not always.  If one parent is really hung up on the label, then there could be a “joint physical custody” arrangement in which the children spend most of the time with one parent, and the child support paid from one parent to the other is not reduced to reflect the “joint” arrangement.  It is not uncommon in a joint physical custody arrangement (both by label and by actual schedule) for the higher earning parent to pay “non-reduced” child support to the lower earning parent (oftentime to obviate the need for spousal maintenance).  It is important to note, though, that in almost all cases in which the label does not match the support calculation and/or the actual schedule, that discrepancy is a product of a negotiated agreement, and not a court decision.  The typical court decision will make the label, the support calculation and the actual schedule all correspond.  If one parent is hung up on the label or the support calculation, it is important to attempt to address that issue outside of court.

In a contested child custody dispute, if one of the parents suffers from mental illness, it is a factor to be considered in the court’s custody decision. Many parents going through a custody battle suffer from conditions such as clinical depression, bipolar disorder, obsessive compulsive disorder or a personality disorder.

The statutory provision of Minn. Stat. Section 518.17 regarding mental illness provides for the court to consider “the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child.”

(Note: the aforementioned definition of “disability” is “any condition or characteristic that renders a person a disabled person. A disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.”)

If one parent (Parent A) suffers from mental illness, the question is whether the other parent (Parent B) holds a “trump card” as a result of first parent’s mental disorder. A case of untreated or unmanaged mental illness may place the parent (Parent A) at a disadvantage. It is important to note the difference, however, if a parent is managing their mental disorder. The issue is the child’s best interests, so if the mentally ill parent is managing their illness (with proper medication, following a caregiver’s recommendations, etc.) then it does not compromise the child’s best interests to be in the care of that parent, and may not provide the other parent (Parent B) with a “trump card.”

A parent suffering from mental illness is well-served to be candid about their condition.  In most cases, the parent’s openness will cause the family court to consider the mental health issue in a light most favorable to the candid parent.

Children under the age of sixteen are not issued passports without the consent of both parents. The Two-Parent Consent Law was revised in February 2008 to include all children 16 and under, and not just children 14 and under.

Both parents must be personally present for the passport application submission, to provide identification and original birth certificates. If one parent can provide the other parents’ notarized consent form, then the passport can be obtained with the presence of only one parent, who must still present identification and an original birth certificate for the child applicant.

The Department of State provides for exceptions to the requirement of either both parents’ presence, or the notarized consent of a non-presenting parent as follows:

*Child’s birth certificate lists only one parent
*Child born abroad
*Custody order granting sole legal custody (and not restricting the child’s international travel)
*Adopted child with only one adoptive parent
*Court order specifically authorizing the child’s travel
*Judicially declared incompetence of the non-applying parent
*Non-applying parent is deceased.

If the applying parent or guardian cannot obtain the written consent of the non-applying parent, the applying parent may make a statement under oath explaining the special circumstances that would warrant issuing the passport.

False statements made knowingly and willfully on passport applications, including affidavits or other supporting documents submitted with the application are punishable by fine and/or imprisonment under Federal law.

Minnesota law provides for certain paternity presumptions that govern when there is a dispute over paternity.  When a child is born to a married woman, the mother’s husband is presumed to be the father. When a child is genetically linked to a man, the man is presumed to be the father.

In cases in which the husband is not the genetic father, the case may hinge on who seeks to be the father. If the mother of the child separates from her husband, the genetic father may be adjudicated the child’s father without opposition from the husband.  If the mother of the child reconciles with her husband, the husband may be adjudicated the child’s father without opposition from the genetic father.

If both men seek to be adjudicated the father, the case may hinge on the family court’s weighing of the facts and circumstances, to determine what is in the best interests of the child.