Parenting Time, Visitation, and Custody
Single, divorcing, or legally separating parents all experience the idea of parenting time in Minnesota. When parents split up and the family’s no longer under one roof, parenting time orders ensure parents each have the opportunity to raise their children.
Parenting Time is what was formerly called “visitation”. However, today visitation legally refers to the time a third party, such as a grandparent, spends with a child. Parenting time is the amount of time each parent spends with the child.
Custody and parenting time are separate issues. Custody is a label. It refers to either legal custody or physical custody. Each custody type can be “joint” or “sole”.
Notably, parents can have joint physical custody, but not 50-50 parenting time.
How is Parenting Time Calculated?
First, parenting time is typically* measured in Minnesota by the number of overnights a child spends with a parent over the course of a year. Parenting time is measured and calculated in Minnesota, because parenting time impacts child support.
Also, parenting time can be organized by creating a parenting time schedule. A parenting time schedule illustrates when the child will be with each parent, such as frequency, days, duration, etc… In addition, in the parenting time schedule, parents can specify and map out holidays, birthdays, special events, and summer vacations.
*Although if the child spends a significant amount of time on separate days with a parent, but doesn’t stay overnight – another method can be used instead. (Minnesota Statutes, Chapter 518.175, Subdivision 1, Paragraph G).
What’s a Parenting Time Order?
A parenting time order is a legal and binding document that maps out the amount of time each parent gets to spend with the child. It’s typically included in a custody or divorce order.
If parents agree on a parenting time schedule, it can be incorporated into this order.
Who Can Get Parenting Time?
The two most typical parenting time cases are:
- A biological father of the child who was not married to the other parent when the child was born*
- A parent who is divorcing or legally separating from the child’s other parent, and the child was born during the marriage; or
* In addition, the parent needs a certified copy of a Recognition of Parentage (ROP) signed by both parents. If there was no ROP, the other parent needs to bring a paternity action.
These provisions typically apply only to fathers. Biological mothers receive parenting time rights by default at birth. The reasoning: there is no dispute as to who the mother is.
When To Get an Order
Original parenting time orders are typically part of a custody or divorce action.
However, if a parenting time order has already been established a parent may motion for a modification of parenting time. This is a separate process with its own different set of rules.
Getting time with your Child
Typically, both parents discuss how they’re going to raise their child. This includes how much time each parent will have. Many parenting time arguments hinge on “50-50” vs. something not “50-50”.
Eventually, parents will either agree on a schedule or will go to a trial. In either case, a judge or referee will need to sign off on an order to establish parenting time.
What Happens when Parents Can’t Agree
Parenting time schedules during a divorce or custody proceeding can be negotiated or mediated between the parents. However, if the parents cannot agree on parenting time, they will have to argue before a judge at a trial.
Judges generally prefer that parents an agreement. Judges recognize that parents are often in the best position to determine what’s best for their children.
However, if a judge must, he or she is required to decide parenting time based on the best interests of the children. What’s best for the child will be determined on a case-by-case basis. However, there are 12 factors (Minnesota Statutes, Chapter 518.17, Subdivision 1) which the court is required to consider to make this determination. Judges review parenting on a case by case basis.
Also, a judge may enlist the help of a third party neutral. Examples include a Guardian Ad Litem or a Custody Evaluator. This neutral thoroughly investigates the family situation and provides a recommendation.
How Parenting Time affects Child Support
Be forewarned, the content gets a little dense here. Effective August 1st, 2018, child support laws in Minnesota have changed. Minnesota replaced the 3-tier Parenting Expense Adjustment (PEA) system from 2007.
With the 3-tier Parenting Expense Adjustment (PEA) system, child support amounts changed significantly at 45.1% parenting time. As a result, a slight change in the parenting time schedule could mean over a $100,000 difference in child support.
This drastic reduction in child support due to slight changes in parenting time was referred to as the child support “cliff.” This “cliff” phenomenon encouraged legal battles between parties over very small changes in parenting time, because of the significant impact it had on child support payments.
As of August 2018, the Parenting Expense Adjustment (PEA) will be calculated based on a parenting time order. In particular, the parenting time order must have an overnight by overnight calculation and the calculation will be an average of two years.
What Happens when one Parent Denies the other Parenting Time?
Denying or interfering with court-ordered parenting time in Minnesota can have serious consequences. If you deny or interfere with parenting time the court can award compensatory parenting time to the other parent.
If compensatory parenting time is awarded, the additional parenting time must be:
- At least of the same type and duration as the deprived parenting time
- Taken within 1 year after the deprived parenting time; and
- At a time acceptable to the parent deprived of the parenting time.
Besides the deprived parent being awarded compensatory parenting time, the court can order additional remedies. For instance, the parent who failed to comply with the parenting time order may have to pay a fine, post a bond, pay attorney fees, and/or reimburse the other parent. In addition, it can even impact custody.
Lastly, denying the other parent his/her court-ordered parenting time because s/he hasn’t paid child support would be an example in Minnesota of unwarrantedly denying/interfering with parenting time. So instead, if the other parent isn’t paying child support, check out Child Support Remedies in Minnesota to find out what can be done.
For other divorce or family law questions, please consult the list to the left or the FAQ page. If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.