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At Issue: The custody ‘battle’

Published (2/11/2011)
By Lee Ann Schutz
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Daniel Probst, 17, and his father, Marty, testify Feb. 8 before the House Civil Law Committee in support of a bill that would create the Children’s Equal and Shared Parenting Act and establish joint physical custody presumption. (Photo by Andrew VonBank)Daniel Probst was 11 years old when his parents began the divorce process.

When it came to deciding with which parent to live, he and his two sisters said they wanted an alternate schedule — one week with mom and then next with dad. However that’s not what the judge granted. At first his mother got sole custody and his father only visiting rights. After more court proceedings, time between parents was split.

“I spend Monday and Tuesday with my mother, and Wednesday and Thursday with my father, and we alternate weekends,” Probst, now 17, told the House Civil Law Committee Feb. 8.

“I’m currently packing up two or three times a week to change houses.” Their lives have been in turmoil, he said.

Probst and his father, Marty, testified that in divorce proceedings, fathers, for the most part, are getting the short shrift when it comes to parenting time.

Rep. Peggy Scott (R-Andover) sponsors HF322 that addresses the “battle” over child custody. “It’s become a contest to determine who is the better parent, with the grand prize being the custodial parent,” she said. The goal of the bill is to equalize the amount of time a child has with both parents.

But, after three hours of testimony, enough committee members agreed with Rep. Mary Liz Holberg (R-Lakeville) that there are some major flaws in the bill that could have unintended consequences and that it needs more work. Committee Chairman Torrey Westrom (R-Elbow Lake) held it over to see if the issues could be worked through. It has no Senate companion.

Bill supporters say the provisions continue the state down the path of modernizing custody and support issues.

It would change current law in divorces where a parent is entitled to receive at least

25 percent of parenting time, to a presumption of joint legal and joint physical custody with a minimum of 45.1 percent of parenting time for each parent. The provisions would be extended to parents who are not married, but where parentage has been established.

A parent who chooses to challenge the joint terms would need to meet a clear and convincing evidence standard that the custody agreement would be unworkable, and not in the best interest of the child.

Molly Olson, founder of the Center for Parental Responsibility, said problems in the legal system are creating “court-forced fatherlessness. … We want to take away the fight and the win-lose model that exists in current law. With this bill we want to reduce litigation for families that are being financially pulverized.” Plus, she said children deserve the time and influence of both parents.

Holberg likes the idea of joint custody, but said the bill’s language related to standards for challenge is problematic.

Addressing the largely male audience, she said: “As I ask the questions I have, you may want to put yourself on the other side of the fence. If you had sole custody of your children, would these standards be high enough for you to go into a shared custody model?”

She said, for instance, if a parent is chemically dependent, it would be hard to prove because of the privacy law. Most likely the only way they would not have joint custody is if that parent was civilly committed. Additionally, the bill would allow for a parent absent from a child’s life for many years to come forward and the court would have to honor joint custody.

“Do I want kids to have a relationship with both parents? You bet I do, but kids need to be safe, and we need to make sure these standards are workable, and have meaning,” she said.

Scott said the bill’s intent is not to put anyone in harm’s way, and agreed to keep working on the language.

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