December 2000 

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"the familiar terminology of the family practitioner was done away with and replaced with friendlier designations for family law concepts."

There's a new sheriff in town-- a kinder, gentler sheriff. At least that's what the Minnesota Legislature and the Governor hope. During the last legislative session, a law was enacted which will forever, or at least until the next amendment, alter the landscape of family practice. It's a law that's been years in the making and which attempts to alleviate one of the primary questions which makes family law so contentious: Who gets the kids?

According to statistics compiled by the State Judicial Information System, the number of dissolution actions involving children has remained relatively stable since 1992.1 The total number of actions filed has hovered between approximately 9,500 and 10,000 per year. The year 2000 will have approximately 9,800 filings for dissolutions with children. This means that each year, courts adjudicate custody and visitation arrangements for tens of thousands of additional children in Minnesota.

The Legislature has tried for decades to make family law more equitable for the parties. In 1969, the Legislature attempted to balance custody issues by introducing the "best interests of the child" standard. This effort was followed in 1974 by the enactment of the "no-fault divorce." Unfortunately, these efforts did little to reduce the animus between the parties. Indeed, Judge Foley of the Minnesota Court of Appeals opined as follows:

It strikes me that if restraint is not practiced in the area of family law litigation, the time will come when only the very wealthy will be able to litigate these matters, and yet custody issues are often at the very heart of family law disputes at all social and economic levels.2

After reforming legislation failed, the Legislature requested that a task force be established to propose methods to reduce parental conflict and, in particular, to evaluate the concept of "Parenting Plans." In response, the Minnesota Supreme Court established the Parental Cooperation Task Force on August 10, 1998. The task force, consisting of judges, legislators, attorneys, court administrators, human services personnel, and members of advocacy groups submitted its report on January 14, 2000. The Legislature modified the task force recommendations, and the Parenting Plan Statute was placed into law, effective, with one exception, on January 1, 2001.3

The purposes of the Legislature in enacting the statute were fivefold: 1) to reduce the number of costly legal battles in custody and visitation proceedings; 2) to eliminate the deep wounds that result from custody and visitation litigation; 3) to improve the future relations between the parties; 4) to maximize the involvement of both parents; and 5) to create healthier families.4 In order to accomplish these goals, the Legislature attempted to facilitate cooperative decision making by parents, to make establishment and modification of orders more flexible, and to eliminate the "all or nothing" outcome of traditional custody litigation.

One significant change from current law is that the familiar terminology of the family practitioner was done away with and replaced with friendlier designations for family law concepts. In particular, practitioners will note that the word "visitation" will no longer have any place in Minnesota. Rather, we will refer to "parenting time," regardless of who has custody of the child at any given moment. In addition, the term "legal custody" will be replaced with the terms "decision-making responsibilities regarding the child." Finally, the long-standing concept of "physical custody" will give way to the more fashionable "residential time," with or without a designation of the child's "primary residence."
For better or for worse, parties have even more flexibility than it appears. This is because the parties need not use either the traditional terms or any of the newer terms in the creation of a Parenting Plan. Even such well-worn adjectives as "joint" and "sole" may be discarded by the parties. In fact, the parties may refer to any portion of a Parenting Plan by any terms they like, so long as those terms are defined in the Parenting Plan. Hence, the term "parenting arrangement" or the term "access schedule" may have different meanings in different proceedings.

This flexibility may be helpful to the participants to resolve issues without the necessity of a trial, but it should be approached with a great deal of knowledge and preparation by the attorneys involved. If parties agree to vague language in order to settle a matter, but the underlying issues are not resolved, judicial economy will suffer. Although a contested hearing of the original action may be avoided, the parties stand a high probability of returning to court to litigate the meaning of any given term, which may also cast doubt on the proper standard to be applied in modifying the previous order. Therefore, attorneys drafting Parenting Plans should be encouraged to pay close attention to drafting a Parenting Plan with an eye toward eliminating potential future litigation.

A fundamental issue to resolve in the creation of a Parenting Plan is the power of the court to impose its will on the parties. The language of the statute on this point was a compromise between the Minnesota Senate, which did not want to grant the court the power to create a Parenting Plan over the objection of a party, and the Minnesota House of Representatives, which did want to grant the court that power. The resulting language, therefore, appears ambiguous and open to interpretation.5 The compromise legislative intent, however, was that the court was not to be given any power which it did not already have in this regard:

The court cannot create a Parenting Plan on its own motion except to make the basic, rudimentary decisions that the court makes in every divorce case with children: What's the residential schedule? What's the decision-making? What's the means for alternative dispute resolution? And that's all the judge can do unless the parties have agreed to these other things: alternative language; [use of] the best interests [standard in] future modifications; [use of] the best interests [standard] to govern a future proposed relocation of the child to a different state.6

Thus, it is the legislative intent that the judge should have the discretion to impose a Parenting Plan upon the parties, subject to certain exceptions, even if the parties object to its creation, but the court cannot go beyond its current authority under existing law.

If both parties agree on a Parenting Plan, it must be approved by the court, absent a finding that the proposed plan is not in the best interests of the child.7 If the parents agree to the use of a Parenting Plan, but not on its terms, the court has discretion whether to create a Parenting Plan or to create a Custody and Parenting Time order.8 These results evince a legislative intent to favor the creation of Parenting Plans over more traditional family orders. Given the authority of the court, and its tendency towards bureaucratic inertia, once the Parenting Plan concept is adopted, the practitioner would be well-advised to move clients toward developing a proposed Parenting Plan rather than use a traditional custody designation.

Peter V. Rother is a law clerk for the Hon. Spencer Sokolowski, judge of the
10th Judicial District. He graduated, magna cum laude, from William Mitchell College of Law.

The Legislature was certainly concerned about the ability of parents to specify what standard to apply in modifying Parenting Plans. Under the old law, the court would apply either the "best interests" standard or the higher "endangerment" standard, depending on what was being modified.9 Under the new law, this dichotomy is retained.10 But the flexibility of the parents to agree on what standard to use is expanded under the new law.

Heretofore, a major sticking point for modifying sole legal or physical custody arrangements was that the endangerment standard was to be applied if the parents did not agree to the modification. And, in a departure from joint legal or physical custody situations, the parents could not agree at the time of their dissolution to use the best interests standard when litigating a future modification of a sole custody order.11 What resulted was an "all or nothing" approach to custody disputes. The party awarded sole physical custody of the child would be allowed, absent endangerment, to retain his or her custody. Because the modification hurdle was so high, parties were forced to litigate the issue during the dissolution, since an original custody determination requires only use of the best interests standard.12

Another potential obstacle in modification proceedings under the old statute was the Ayers case.13 In Ayers, the Minnesota Supreme Court held that a mother's attempt to substantially modify visitation actually amounted to a motion for modification of the parties' joint custody and that the endangerment standard would therefore apply.14 From Ayers, one can certainly see the potential in a sole physical custody case for a visitation modification motion to be judicially transformed into a custody modification motion. If this were to occur, the parties could not agree to the use of the best interests standard, even if they wanted that standard applied.

The new statute drafts around these difficulties. Under the new law, parties can agree to use the best interests standard to resolve future modification motions for any Parenting Plan provision relating to parenting time, decision making regarding the child, or to a child's primary residence.15 The new statute also allows parties to agree to use the best interests standard in all traditional custody modification matters, so long as the agreement is approved by the court.16 If the Parenting Plan does not include an agreement to use the best interests standard, a Parenting Plan provision which specifies the child's primary residence may only be modified using the endangerment standard.17

The only serious issue surrounding the parties' ability to make agreements to use the best interests standard is the issue of representation by counsel. As practitioners know, it is not uncommon for the parties to request joint representation in dissolution cases. Attorneys are well-advised to carefully consider the ethical problems that may arise in such a situation.18 The new statute allows agreements that stipulate to the use of the best interests standard if both parties are represented by counsel.19

The Legislature was seriously split on whether representation of both parties under the new statute precluded joint representation. Although the author of the bill disagreed with the outcome on this point, it is apparent that legislative intent does not permit joint representation to satisfy the requirement of representation of both parties in drafting agreements under the new statute.20 This is not to say that joint representation is impossible. Under the statute, so long as the court approving the agreement makes findings regarding, for example, the voluntariness of the agreement, joint representation is not precluded in drafting Parenting Plans which specify the use of the best interests standard in future modifications of custody or primary residence of the child.21

There may, at first blush, be some sense of confusion as to what impact the new Parenting Plan statute will have on child support. The statute, in one breath, states that the statutory child support guidelines will apply to Parenting Plans; but in the next breath, the statute allows a Parenting Plan to include "an allocation of expenses for the child" which is binding on the parties.22 The Senate version of the bill allowed only allocation of expenses that were not included in the guidelines, while the House of Representatives version did not include this restriction. This discrepancy is explained somewhat by the admission in the Legislature that what items are or are not included in the child support guidelines has not been definitively decided.23

After discussion, the conferees agreed to strike the additional Senate language with the understanding that, as is current practice, one of the following three outcomes may occur in a Parenting Plan with respect to child support: 1) The parties may agree to apply guidelines child support; 2) The parties may agree to apply guidelines child support and allocate certain expenses, for example, college expenses, between them; or 3) The parties may agree to reserve child support and allocate all of the child's expenses between them. Any agreement, of course, must be approved by the court since it is well-established that parental agreements may not negatively impact the best interests of the children.24

There is one term, however, in the new statute that is almost certain to spawn litigation -- the Parenting Plan provision which specifies the "child's primary residence." The significance of this phrase is twofold: 1) As noted above, a provision in the Parenting Plan that specifies the primary residence of the child may be modified, absent an agreement of the parties, only by use of the endangerment standard; and 2) The definition of the term has a major impact on which party, or both, are child support obligors.

Under current law, in joint physical custody situations or when the noncustodial parent in a sole physical custody situation "provides a nearly equal amount of physical care" of the child, a party is not required to pay child support for the time that the party is providing for the physical care of the child.25 The present statute, left unchanged by the Parenting Plan amendments, provides a rebuttable presumption that the sole physical custodian is not a child support obligor.26 This begs the question: Did the Legislature intend a "child's primary residence" to be equivalent to "sole physical custody" or to have some other impact on child support matters? Unfortunately, there is no clear answer.

The bill approved by both houses did not have a provision for the "child's primary residence" when it reached the conference committee. Rather, the language was substituted in the conference committee for language in the bill that referred to the parent "with whom the child spends the most time." The author of the bill stated that it would probably not be productive to start counting the days, hours, minutes, and seconds of time the child was with each parent and that the term "primary residence" seemed clearer and better suited to capture the legislative intent.27 But courts have taken to just such a literal time count when determining custody for child support obligations. Therefore, practitioners drafting Parenting Plans should consider the implications of this ambiguity and draft the conscious desires of the parties rather than leave the matter to future litigation.

Under the new statute, there are two potential orders that could issue from the family court regarding parents and their children: 1) a Custody and Parenting Time order; or 2) a Parenting Plan order. Under what circumstances should one type be selected over the other? Like most legal issues, the answer is that it depends.

Recalling the purposes of the statute, it would seem that Parenting Plans would be better used in situations where there is some form of parental agreement and cooperation regarding the children. The more cooperation parents demonstrate, the more likely a Parenting Plan is to be effective. Since Parenting Plans also can encompass a greater range of issues and in much more detail than previous custody orders, cooperation is essential to prevent future litigation. A Parenting Plan can offer flexibility that simply is not available with traditional orders. Any concerned parent could not help but feel dissatisfied by a traditional order that "takes" physical custody away or "gives" custody to the other party. In addition, couples that are dissolving their marriage may have taken on certain roles that they wish to continue after the dissolution, for example, religious instruction or educational assistance, and this would not be available to them with a custody order. A Parenting Plan can leave both parties much more satisfied with the dissolution process and with the outcome than Custody and Parenting Time orders.

It would appear that a Custody and Parenting Time order would be better suited to situations with high parental conflict. Designations of custody are much more restrictive than designations in Parenting Plans. Parents in high conflict cases need the narrow and well-litigated concepts to clearly set their boundaries. In addition, the custody designation provides a clearer picture of child support obligations, which are also typically central to high conflict cases. A more traditional Custody and Parenting Time order is also better suited to situations where an out-of-state move is anticipated. Courts in other jurisdictions may not, for the immediate future, have much experience with the concepts and linguistic nuances that can exist in Parenting Plans. As a result, litigation in other states may have unintended consequences for the participants.

The new statute will take some getting use to, particularly for practitioners who haven't seen major modifications to the custody and visitation statutes for more than 25 years. In fact, there was significant debate in the Parental Cooperation Task Force as to whether the Parenting Plan concept was proven to reduce conflict and accomplish the goals of the legislation. But with dissolutions with children remaining stable and with parental conflict a perennial concern, any step is likely to be more productive than the status quo.

"It would appear that a Custody and Parenting Time order would be better suited to situations with high parental conflict."

1 Prior to 1992, SJIS tracked only the total number of dissolution actions filed without distinguishing between dissolutions with children and dissolutions without children. Since 1992, dissolutions without children have risen from approximately 7,100 per year to what will be approximately 8,100 filings in the year 2000. The stated figures do not take into account the thousands of paternity, custody, and modification actions that are also filed each year.
2 Sinsabaugh v. Heinerscheid, 428 N.W.2d 476, 481 (Minn. App. 1988) (Foley, J., concurring).
3 The statute makes modifications to Minn. Stat. ¤¤ 518.003, 518.175, and 518.18, among others. In addition, the Parenting Plan itself is created in new Minn. Stat. ¤ 518.1705. The exception to the effective date is found in Minn. Stat. ¤ 518.18(d)(i).
4 "Parenting Plans, 2000: Hearings on H.F. 3311 Before the House Civil Law Committee," 81st Leg. , 2000 Reg. Sess., Tape 1, Side B (March 2, 2000) (statement of Rep. Andy Dawkins).
5 See, e.g., Minn. Stat. ¤¤ 518.1705 subd. 3(b) and subd. 5.
6 "Parenting Plans, 2000: Senate Conference Committee on S.F. 3169/H.F. 3311," 81st Leg., 2000 Reg. Sess., Tape 1, Side A (April 10, 2000) (statement of Rep. Andy Dawkins).
7 Minn. Stat. ¤ 519.1705 subd. 3(a).
8 Minn. Stat. ¤ 519.1705 subd. 5.
9 See Minn. Stat. ¤¤ 518.175 subd. 5 and 518.18(d) (1998).
10 See Minn. Stat. ¤¤ 518.175 subd. 5 and 518.18(d).
11 See Frauenshuh v. Giese, 599 N.W.2d 153, 157-158 (Minn. 1999).
12 See Minn. Stat. ¤ 518.17 subd. 3(a)(3) (1998).
13 Ayers v. Ayers, 508 N.W.2d 515 (Minn. 1993).
14 Ayers, 508 N.W.2d at 520.
15 Minn. Stat. ¤ 518.1705 subd. 9.
16 Minn. Stat. ¤ 518.18(d)(i).
17 Of course, this is absent other enumerated exceptions. See Minn. Stat. ¤ 518.18(d)(iv).
18 See, e.g., Minn. R. Prof. Conduct 1.7.
19 Minn. Stat. ¤¤ 518.1705 subd. 9 and 518.18(d)(i).
20 "Parenting Plans, 2000: Senate Conference Committee on S.F. 3169/H.F. 3311," 81st Leg., 2000 Reg. Sess., Tape 1, Side A (April 6, 2000) (statements of Rep. Len Biernat and Sen. Leo Foley).
21 See Minn. Stat. ¤¤ 518.1705 subd. 9(b)(2) and 518.18(d)(i).
22 Minn. Stat. ¤ 518.1705 subd. 8.
23 "Parenting Plans, 2000: Hearings on H.F. 3311 Before the House Civil Law Committee," 81st Leg. , 2000 Reg. Sess., Tape 2, Side A (March 2, 2000) (statement of Suzanne Born, member of the Parental Cooperation Task Force).
24 See Compart v. Compart, 417 N.W.2d 658, 660 (Minn. App. 1988) ("Child support relates to nonbargainable interests of children.").
25 Rumney v. Rumney, 611 N.W.2d 71 75 (Minn. App. 2000).
26 Minn. Stat. ¤ 518.54 subd. 8 (1998).
27 "Parenting Plans, 2000: Senate Conference Committee on S.F. 3169/H.F. 3311," 81st Leg., 2000 Reg. Sess., Tape 1, Side A (April 10, 2000) (statement of Rep. Andy Dawkins).