Today there was a committee hearing at the Minnesota Legislature on a proposed bill to enact a presumption in favor of joint physical custody. The bill would establish a rebuttable presumption that joint physical custody is in the best interests of a minor child. (Minnesota law already has a presumption that joint legal custody is in the best interests of the child, if one or both parties requests it, except in cases of domestic abuse.)

The committee heard testimony from supporters of the measure, who are pushing for family law reform due to their claims that noncustodial parents are not treated fairly in Minnesota family courts. The committee also heard testimony from opponents who expressed concern that a presumption of joint physical custody would have an adverse impact on domestic abuse victims, place children in the middle of conflict, and would be based upon a misunderstanding of the current state of the law, which does not contain a presumption AGAINST joint physical custody nor a presumption in favor of sole physical custody.

As a practicing divorce attorney for many years, my clients include both mothers and fathers; custodial parents and noncustodial parents; victims, perpetrators, and falsely accused perpetrators, of domestic abuse. The fact is, currently, many family court orders award joint physical custody, many orders grant sole custody to dad, and many orders grant sole custody to mom. There is a growing trend to avoid the label of physical custody altogether, and use parenting plans and/or alternate terminology. A presumption of joint physical custody will not help the family court system.

Joint physical custody should not be confused with co-parenting. It is not necessary for a child’s parents to have joint physical custody in order for the child to have a healthy relationship with BOTH parents. It IS necessary for the child’s parents to properly CO-PARENT (or to have the active involvement of parenting neutrals). But joint physical custody is not indispensable, and for many families, would actually INCREASE the conflict that the child experiences, instead of lessening the conflict.

The bill, which makes exceptions to the proposed joint physical custody presumption in cases of domestic abuse, would require a court to make detailed findings to overcome the presumption and order something other than joint physical custody. So the proponents of this bill are seeking to have the family court forum be a place where courts decide whether someone should NOT have joint physical custody and make detailed findings about why NOT. The family courts – with which many individual committee members recounted their own personal, bad experiences – are already a forum that seems rife with negative energy. Yet what is proposed is for the presumption to be joint physical custody, and for all the focus of contested custody proceedings to be what these parents are NOT doing right in order NOT to be awarded joint physical custody. It adds more misfortune to what is, for many, the most unfortunate experience of their lives.

Moreover, either parent may be willing to allow the other parent to have sole physical custody, but not when faced with a presumption in favor of joint physical custody. They may be unwilling to “opt out” of the joint physical custody presumption (even though they would otherwise not fight for joint physical custody) figuring that they would appear to be turning their back on their child. Again, for many families in transition, the focus needs to be on REDUCING THE CONFLICT, not landing a coveted label of “joint physical custody”. In many instances, temporary or permanent custody arrangements other than joint physical custody are in the child’s best interests.

One other concern is the domestic abuse exception that is written into the bill. The domestic abuse laws of Minnesota are good laws, with a very bad downside: false accusations. Domestic abuse proceedings are the classic, quintessential “he said, she said”, and many litigants use the laws, in bad faith, as a tactic for undue advantage. This unfortunate practice would become only more common in the instance of a joint physical custody presumption with a domestic abuse exception.

Ultimately, this afternoon, the bill proposal was amended (i.e., compromised) to refer the issue of a joint physical custody presumption to a study group, to explore the family court processes, and determine what steps need to be made to improve the system. Many of the committee members expressed disappointment that such an action was, in fact, a failure to act. In my humble opinion, the bigger failure would have been enacting a joint physical custody presumption.

In many instances when facing a dispute during a divorce or custody case, it is important to be mindful of the existing circumstances: where the child is living; who is in possession of the house; whether both spouses are working outside the home.   It is important because, all other things being equal, the court is very likely to maintain the status quo, if possible, when deciding an issue. 

This is especially important in the case of temporary orders (i.e., court orders that are in effect while the case is pending).  If the court must decide the temporary parenting schedule, the court will likely need a specific reason to CHANGE what the current pattern is.  Unless there is good reason, the court is likely to stick to the "status quo."  If one party has refrained from working outside the home for several years, the court is unlikely to expect that party to immediately produce substantial income.  Instead, the court will (at least temporarily) maintain the status quo, and refrain from expecting separate earnings from that party.

The status quo issue is an important consideration when someone is deciding whether or not to move out of the marital residence.  If someone moves out of the house, they can be creating a new "status quo" that they may need to be prepared to stick with.  Someone who moves out, leaving children at the marital home with the other parent, allows for a new "status quo" that the children are living with one parent in the home.  The party who moved out may have a difficult time later obtaining sole custody, or even joint custody, based upon the status quo established with the move-out. 

The same can be said of later obtaining possession of the house.  If one party moves out, then the family court is unlikely to impose upon the other party the disruption of moving out over his or her objection.