An increasing amount of states are shifting towards a shared parenting presumption in family law cases, as proponents believe children are better served if they can spend equal time with both parents.

“The best interest of the child or children trump the interests of the filing parent,” said Tom Barnett, the executive director of the South Dakota Bar Association.

Proponents say a shared custody agreement should be granted unless there is a history of abuse or substance use, but opponents say it generalizes each case, and children are best suited when a judge examines the idiosyncrasies of each individual case.

Katie Lammers, a Family Law attorney in the Twin Cities, said shared parenting is not the de facto norm in Minnesota.

“In Minnesota, currently there isn’t a presumption for joint physical custody,” said Lammers. “Custody is decided by looking at multiple factors and determining the best interests of the child.”

Changes Coming?

Minnesota lawmakers are always looking at new ways to revise some of the current Family Law statues, but they may soon follow suit of other states that have adopted similar changes. For example:

  • Lawmakers in Arkansas recently passed a law that demands “approximate and reasonable equal division of time” during divorce proceedings.
  • Connecticut created a special task force to determine whether the state should adopt the presumption of shared custody when dealing with Family Law issues.
  • Maryland adopted a Commission on Child Custody Decision Making to decide if similar measures should be taken. A final report will be made be December 1, 2014.

While some states are moving towards a shared parenting presumption, other states are resisting the change. In Florida, Republican Governor Rick Scott vetoed a bill that called for a shared custody presumption, and in Minnesota, Governor Mark Dayton shot down a 2012 measure that would have increased the mandatory minimum amount of custody following a divorce from 25 percent to 35 percent.

Family Law in Minnesota

Lammers spoke in depth about the current state of Family Law in Minnesota, including how the state views custody agreements during a divorce.

“There is frequent proposed legislation attempting to modify the sole physical custody presumption that, to date, has been stuck down. In 2008, the Minnesota Legislature directed the state court administrator to convene a ‘Study Group’ to consider the potential impact of adopting a joint physical child custody presumption.”

“Legislators and Minnesota Family Law professionals have been working together to develop a law that is suitable to those both for and against the presumption. One of the concerns about the joint physical custody presumption is that appropriate child placement for physical custody is very fact specific, depending on a variety of factors, including but not limited to:

  • The age of the child;
  • The location of the parent’s residences;
  • The physical and mental needs of the child;
  • Who has been the primary caregiver; and
  • Whether domestic violence has occurred in the family.

“The term ‘joint physical custody’ means that the routine daily care and control and the residence of the child is structured between the parties. When joint legal or physical custody is sought, in addition to be best interest factors, the court must consider the ability of the parents to cooperate, dispute resolution, whether sole custody would be detrimental to the child, and whether domestic abuse has occurred. There are definitely pros and cons to each argument.”

Related source: USA Today