Parenting Time, Visitation, and Custody
Single, divorcing, or legally separating parents need to learn about parenting time in Minnesota. When parents split up and the family’s no longer under one roof, parenting time ensures parents have the opportunity to raise their children and be apart of their lives.
Parenting Time refers to the time each parent spends with his or her child. The term, Parenting Time often gets confused with the terms: Child Custody and Visitation. However, because of the different legal implications, you need to have a clear understanding of these terms.
- Parenting Time is what was formerly called “Visitation”
However, today, the term, Visitation, legally refers to the time a third party (such as a Grandparent) spends with a child.
- Parenting Time is not Custody
Although custody and parenting time are separate issues in Minnesota, many parents confuse parenting time with custody (in particular, Physical Custody). For example, it’s not uncommon for a parent to believe that “shared custody” or “joint custody” means that the child spends 50% of his/her time with each parent. However, this misconception is detrimental because it could mistakenly lead a parent to agree to less time with his/her child. Therefore, think of parenting time as the amount of time you’re with your kid and child custody as the decision-making rights you have regarding your kid. In addition, read Child Custody in Minnesota before discussing custody with the other parent.
How is Parenting Time Calculated?
To get even more specific, parenting time in Minnesota is measured, calculated and organized.
- First, parenting time is measured in Minnesota by the number of overnights a child spends with a parent.*
- Parenting time is measured and calculated in Minnesota, because parenting time impacts child support. We’ll talk more about this later in the article.
- Lastly, parenting time in Minnesota 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, for example.
*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. In addition, the age of the child can be used by the court to determine if the parent is with the child for a significant period of time. (Minnesota Statutes, Chapter 518.175, Subdivision 1, Paragraph G).
What’s a Parenting Time Order?
If you want to see your child and spend time with him/her, you’ll want to get and have a Parenting Time Order from the court if you’re divorcing, legally separating from, or not married to, the other parent. 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 called a Parenting Time Order, because in essence, the Court is ordering: 1). Each parent to spend (a certain amount of) time with the child, and that, 2). Neither parent denies or interferes with the other parent’s time with the child. In addition, you can ask for a parenting time schedule to be apart of your parenting time order.
Who Can Get Parenting Time?
Although there are other parties who can request parenting time, for simplicity’s sake and the topic of this article, you can request parenting time with your child, if you are:
- The biological parent of the child, but were not married to the other parent when the child was born*;
- A parent who is legally separating from the child’s other parent, and the child was born during the marriage; or
- A parent who is divorcing the child’s other parent, and the child was born during the marriage.
NOTE: In addition, you’ll have to have a certified copy of the Recognition of Parentage (ROP) signed by both you and the other parent. If you don’t have an ROP, you’ll have to establish an Order for Paternity, before you can request parenting time.
When To Get an Order
Typically, a parent gets a parenting time order during a divorce or legal separation. In addition, a parent can request parenting time during a child custody and/or child support case. However, please keep in mind, that just because a parent asks for parenting time, doesn’t mean you’ll automatically get an order for parenting time with the amount that you wanted.
NOTE: If a parenting time order has already been established (for example, as part of a divorce decree) and a parent wants to change parenting time, then the parent is actually asking for a Parenting Time Modification. It matters whether a parenting time order currently exists because, there are different requirements that need to be met based on whether you’re asking to establish or modify a parenting time order. This article focuses on establishing a parenting time order, not modifying a previous parenting time order.
Getting time with your Child
Typically, during a divorce, legal separation, child support and/or custody proceeding, both parents (regardless of whether they have a divorce or family law attorney) discuss how they’re going to raise their child. Part of this conversation includes discussing how involved each parent is going to be in the child’s life and how much time the child will spend with each parent.
Once the parents’ agree on parenting time, they need to request a Parenting Time Order from the court. In addition, to following proper procedures, this requires drafting and submitting the correct documents to a judge. If both parties are represented by counsel, the judge may review and sign off on the order, otherwise the parents will need to attend a court hearing, as well.
What Happens when Parents Can’t Decide or Don’t Agree on Parenting Time
This is when it can get hard. Parenting time schedules during a divorce or custody proceeding can be negotiated or mediated between the parents. If the parents cannot agree on a parenting time, a Judge will be forced to decide a parenting time order.
Judges generally prefer that parents reach this agreement themselves based on the belief that parents are often in the best position to determine what’s best for their children. The Judge is required to decide a parenting time order based on the best interests of the children.
- In these cases, a judge will often enlist the help of a third party neutral, like a Guardian Ad Litem, Parenting Time Expeditor, or a Custody Evaluator, to thoroughly investigate the family situation and provide a recommendation.
- What’s appropriate for parenting time will depend on the family and the child.
- 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 use to make this determination.
How Can I Get Additional Parenting Time?
One way a parent may get additional parenting time with a child is to provide child care while the other parent is working. For example, instead of daycare, a before or after-school program, and/or hiring a babysitter while one parent is working, the other parent would care for the child(ren) during this time. A Judge may grant additional parenting time for child care to a parent when the arrangement is reasonable and in the best interests of the child.
In addition to the arrangement being reasonable and in the best interests of the child(ren), the following factors also impact the court’s decision:
1. The ability of the parents to cooperate;
2. Child care dispute resolution methods, and the parents’ willingness to use those methods; and
3. Whether domestic abuse has occurred between the parties.
(Minnesota Statute 518.175, Subdivision 8).
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 a Parent is Denied Parenting Time by the Other Parent?
In the absence of domestic abuse, in Minnesota, it’s believed that children do best when they have the support and involvement of both parents. Therefore, typically the other parent will have at least 25% parenting time with the child.
Although there are many ways that time could be arranged, to give you an idea of what 25% parenting time looks like, the other parent may have the child for an overnight each week, along with every other weekend. Therefore, if the other parent has been awarded parenting time by the court, but the other parent doesn’t allow him/her to see the child(ren), there are ways to remedy the situation.
Remedies for Denial or Interference
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:
a. At least of the same type and duration as the deprived parenting time (or at the discretion of the court, may be in excess of or of a different type than the deprived parenting time);
b. Taken within 1 year after the deprived parenting time; and
c. 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.