The debate over joint physical custody

Excerpts below, full article available at St Paul Pioneer Press.

The debate over joint physical custody
MARK YOST
Feb. 01, 2005

Joint physical custody is going to be a hot topic in the current legislative session. Most parents get "joint legal custody," which under Minnesota statute is defined as "both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing." "Joint physical custody" means "that the routine daily care and control and the residence of the child is structured between the parties."

Under Minnesota law, parents who file for divorce are required to come up with a parenting plan within 90 days. If they cannot agree to one, the court will devise one for them. In the vast majority of cases, the mother is awarded primary physical custody and the children see their father every other weekend and one night a week.

"Joint physical custody is based on the ability of the parties to cooperate," said Ron Sieloff, a family law attorney who spent 12 years in the Legislature. "If one of the parties refuses to cooperate, it reverts to the old system."

Tim Mahoney, the DFL representative for District 67A, hopes to change that.

"There are a lot of good dads out there who want nothing more than to be a part of their kids' lives," the twice-divorced union pipe fitter said in an interview. "The current system is really unfair in that it limits the amount of time the best of dads get to spend with their kids."

Under Mahoney's bill, joint physical custody would be the default remedy when parents can't agree on a parenting plan. Children would spend roughly half their time with mom and half with dad. The bill contains common-sense provisions in case of domestic violence, child abuse and the like.

"It's a small change," said Mahoney. "But I expect there will be deep opposition to it."

One reason that some will oppose Mahoney's bill is that physical custody and child support are tied at the hip.

"The label 'physical custody' determines child support," Sieloff said. "From it, all else flows."

There's concern that if mothers lose primary physical custody, they'll also lose their child support. The Center for Parental Rights, a Roseville-based group of mostly fathers and some step-moms, supports Mahoney's legislation and has a solution: Separate the two issues.

During their January meeting, members told Mahoney and DFL Sen. Don Betzold, who chairs the Judiciary Committee that will review Mahoney's bill if it passes the House, that they'd be more than willing to continue to pay their full child support in exchange for joint physical custody.

That's what Tom Rubey, a Minnesota Department of Health economist, proposed during his divorce proceedings.

"I didn't want it to be about money," said Rubey.

He proposed paying the full amount dictated by child-support guidelines. The judge denied the motion.

Betzold sees the argument about child support and custody as a canard.

"This is all about child support," Betzold said in an e-mail response. "A lot of the men who were there are angry and upset that they have to pay it. They somehow think that if they had joint physical custody, they won't have to pay child support."

He also believes that joint physical custody isn't in the best interest of the child.

"I'm sure any family law judge would be hard pressed to come up with cases where there was a true joint sharing of physical custody that actually worked," Betzold said. "We're talking about situations where the parents can't set aside their differences and yet the courts must presume that they can share physical custody?"

Mahoney is hoping to give them a chance to try.