The Decision to Divorce: Parenting Time

Parenting time. Parenting time means the time a parent spends with the child, regardless of the custodial designation regarding that child. The old term we used was visitation. Parenting time occupies a significant percentage of time parties spend in mediation and litigation. It has become uniquely important, but at the same time it is becoming more and more predictable. Let’s talk about why it’s important. Obviously, most parents want to maintain a close connection to their children, especially in the midst of a divorce or separation. Losing the intact family is painful. Also, losing regular contact with the kids is a doubling down on that pain.

But there’s another reason we are seeing an uptick in parenting time litigation. Current child support guideline calculations include the amount of parenting time each parent has. We have a parenting time adjustment. This adjustment reflects the presumption that kids cost money. The more time a parent has, the more they will naturally spend on their kids. We are literally counting overnights for the entire year. The greater, the number of overnights, the greater the parenting time adjustment. This results in less child support. This financial consideration goes both ways. Each parent has a financial incentive to focus on the number of overnights awarded or not awarded.

Parenting time therefore, is always the financial elephant in the room. But parenting time is becoming more and more predictable due to some fairly recent changes to the law. Determining the correct parenting time schedule is a matter of considering the 12 best interest factors found in Minnesota Statute § 518.17. This statute is a list of the things the court must consider when making a determination on both custody and parenting time. These factors include for example, the court must look at the child’s physical and emotional needs. The court must consider the reasonable preference of an older child, and whether or not there has been domestic abuse between the parties.

Newly added or fairly newly added is factor 10 and that reads “The court must consider the benefit to the child of maximizing parenting time and the detriment to the child in limiting parenting time.” Now, did you catch that? It’s a benefit to maximize time and a detriment to limit time. This is a new presumption. It has been my experience that judges are more willing to consider equal or substantially greater time for both parents because of this presumption. Every year, there is new legislation proposed calling for a presumption of both joint physical custody and equal parenting time.

Wisconsin went that way, years ago. People I know who are on the Family Law Legislative Committees, overseeing this type of legislation have told me if not this year, the next that this legislation will pass. And we will have a presumption that all parenting time determinations should be equal unless there are unique circumstances. One last thing, when you find yourself in a position of needing to consider parenting time, it is critical that you stay connected to your kids during the early stages of the process before lawyers and the court get involved. What you do informally at the beginning, the court will always consider when the formality is necessary. So parenting time has become quite the focus in family law litigation. I don’t see that changing even after the presumption in favor of equal parenting time. Thank you.