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June 7th, 2012 by Robert Franklin, Esq.
In the past, I’ve written a lot about shared parenting legislation in Minnesota.  But this time I’ll let the experts do it.  The op-ed reprinted below is by the director of the Center for Parental Responsibility, Molly K. Olson, who, for 13 years has spearheaded the drive to put Minnesota parents on an equal footing in custody cases (Minneapolis Star Tribune, 5/31/12).  Her co-authors are Minnesota House members Peggy Scott and Tim Mahoney who respectively carried this year’s bill and those in previous years.  As such, they know the ins and outs of the bill and the misinformation that ultimately defeated it better than anyone.

Of course the bill itself wasn’t defeated at all.  On the contrary it won with a combined House and Senate vote of 132 in favor versus 61 opposed.  That’s a landslide of 68%.  But it needed one more vote, and that it did not get.  Governor Mark Dayton vetoed the hugely popular measure on the very last day, penning a letter that promised action “next year.”  Molly Olson has now seen 13 “next years” come and go, but Minnesota fathers are still mired in the usual post-divorce custody rut, and Minnesota’s kids see their relationships with their dads grow more distant with each passing day.  As of now, everyone in the state knows exactly who’s to blame for that – one man, Mark Dayton.

Of course, the bill he vetoed was nothing like what Olson and so many others have been campaigning for since the 90s.  It was modesty itself.  The bill that reached Dayton’s desk altered Minnesota law in one way and one way only; it increased the presumed time a non-custodial parent spends with his child from the current 25% to 35%.  Every word of Minnesota custody law remained the same, but in some way its opponents never explained because they can’t, under HF322, all of a sudden domestic violence would become a problem it’s not already and judges would be deprived of discretion in deciding custody.

Both claims are claptrap; they’re untrue on the face of the bill itself.  All you have to do is compare it with existing law and you know they’re false, but Dayton allowed himself to be swayed by the arguments of divorce lawyers and the domestic violence establishment.

But enough of me.  Here are the views of Olson, Scott and Mahoney in full:

In vetoing the bill that would have increased the minimum presumption of shared parenting following a divorce from 25 percent of the time to 35 percent (unless the court found a reason to restrict access), Gov. Mark Dayton may have been swayed by misinformation.

It’s extremely unfortunate that such an important bill, thoroughly researched and carefully analyzed for so many years, and so strongly supported by the majority of citizens in this state, could be obliterated by the stroke of a pen. The heavy lobbying and inside relationships of special-interest attorneys won out over the cries of children and the persistence of the parents. Citizens seeking justice through the courts have been told by judges to talk to the Legislature to change the law. The people did speak through their legislators, and the bipartisan bill passed 132-61.

There is mass public outcry for family court reform. Legislators often say they have persistently and consistently heard more complaints about family court than just about any other issue.

The current presumption of 25 percent parenting time reflects a glorified every-other-weekend and holiday schedule, with an extended summer vacation.

Current law requires a judge to pick one winner parent and one loser parent. This creates conflict.

Where the law is silent, the Minnesota Court of Appeals has legislated from the bench and determined that joint physical custody and equal shared parenting is not allowed except in rare circumstances. This is completely inconsistent with volumes of current social-science research.

Children do better with both parents in their lives. When each fit parent is ready, willing and able to take responsibility for their own children, why should the courts prevent this?

Divorce is devastating to children. The law should work to empower parents to do the right thing for their children, and that means to support each fit, loving parent to be the best parent they can be.

The full version of the bill (HF322) was a rebuttable presumption — that is, it’s not a mandate and judges can deny it — for joint physical custody and equal shared parenting.

Key senators on the Senate Judiciary Committee wrote a watered-down version of the bill that deleted 99 percent of the House version. This Senate version, meant to appease the opposition, represented a minor change in the law. The Senate bill would do only one thing: grant a rebuttable presumption for 35 percent parenting time.

The governor indicated that he was “particularly influenced” by opponents who claimed their expertise working “every day with the most challenging divorces.” We are left to assume he was referring to the same three lawyer groups who heavily lobbied and testified against the bill throughout the legislative process.

The opponents of the shared-parenting bill consisted primarily of a small, influential group of well-entrenched lawyers from Legal Aid, the Family Law Section of the Bar and the American Academy of Matrimonial Lawyers. Since custody battles are revenue generators for attorneys, they have a lot at stake.

During the process of developing bill language, supporters invited these opponents and a domestic-violence group into the process. The opponents refused to offer any suggestions for bill language to satisfy their concerns or help solve the problems of unwarranted conflict over custody and the inequities in parenting time determinations for fit parents.

The reasons the governor’s veto letter gave for his decision were most stunning to those who know family law and how the courts and lawyers operate. The letter indicates Dayton’s concern for special circumstances, each family’s unique set of facts, and the safety of parents and children. This was a short, repeated litany of the misleading prevarications used by the opposition during the legislative process to plant fear, uncertainty, and doubt in the minds of policymakers who didn’t know enough about how family law works to be able to rebut the objection or get further clarification.

The next question should have been: How would this bill for a 35 percent presumption handle those situations any different than the current law handles the same situations with the 25 percent presumption? The answer: Exactly the same. There is no consistency to the argument when the opposition claims 35 percent won’t work for the same reasons it claims 25 percent does work — judicial discretion.

Then there is the wildcard — domestic violence. This matter has its own set of protections that preempt all other family law, and the final version kept all of that in tact.

In the bill, the presumption for increased parenting time was not a guarantee, and it wasn’t a mandate. Just as is true with current law, the bill maintained the same unbridled discretion to restrict parenting time for any reason the family court system deems necessary.

The citizens of Minnesota need to ask: How did divorce lawyers circumvent the will ofthe people?

There’s a simple answer to that question – the Governor of Minnesota allowed them to.

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