Family Law Updates

Rebuttable Presumption of 25% Parenting Time

Starting in 2007, Minnesota’s parenting time statute has included a rebuttable presumption that a parent is entitled to 25% parenting time under Minn. Stat. §518.175 subd. 1(g) (2016). Minn. Stat. §518.175 subd. 1(g) can be broken down into four sections:

• the absence of evidence, there is a rebuttable presumption of 25% parenting time;
• percentage of parenting time can be determined by calculating the number of overnights the child spends with a parent; or
• by using a method other than overnights if the parent has significant time on separate days when the child is in the parent’s custody, but doesn’t stay overnight.
• courts may consider age when determining whether a child is with a parent for a significant period of time.

Since the inclusion of a rebuttable parenting time presumption in the statute, the courts have only published three cases addressing the implications of the presumption.

Dahl v. Dahl

The first case to addressing the parenting time rebuttable presumption was Dahl v. Dahl, 765 N.W.2d 118 (Minn. Ct. App. 2009). This case was the first that the appellate court interpreted the statutory presumption. The court found that the statutory presumption applied to modifications of parenting time.

In the case, a mother was awarded parenting time of one week a year plus an extended summer visit in the divorce. Seven months later the mother motioned seeking compensatory parenting time and asked the court for 25% parenting time. The district court never addressed the 25% presumption and granted considerably less than the 25% parenting time. Leading the mother to appeal, arguing that the district court failed to apply the statutory presumption. The appellate court acknowledged that there were no appellate decisions applying this part of the statute, but held that because part of the subdivision applied to modification, all the subdivisions applied. The court remanded and ordered the district court to address the mother’s motion for modification applying the rebuttable presumption of 25% parenting time.

Hagen v. Schirmers

The second case addressing the presumption was Hagen v. Schirmers, 783 N.W.2d 212 (Minn. Ct. App. 2010). After the decision in Dahl, this is the next case to interpret the statute provision. This case clarifies the scope/application of Minn. Stat. §518.175 subd. 1(g) and standard of review that the trial courts need to apply.

In this case, the district court had approved the move of the mother to California and granted the father 32 days of parenting time a year. Under a previous order, the father had less than 25% parenting time, but what set to increase with the child’s age. When the court granted the 32 days, it didn’t address the 25% parenting time presumption from the statute. The father appealed the order arguing that the court had abused its power by granting parenting time below the presumption and granting the mother’s move. The appellate court held that when the presumption of 25% is properly raised and less than 25% parenting time is granted, it is a reversible error is the court fails to address the statutory presumption. Once the presumption is properly raise the court must:

• Determine parenting time with consideration of the presumption;
• Determine the parenting time percentages;
• Make findings that support the court’s determinations; and
• State the basis for departing from the presumption if applicable.

In this case the court also noted that if the parenting time it can be justified by reasons relating to the best interest factors and what is possible under the circumstance of each case. Finally, the court held that electronic communications between a parent and child do not count towards the 25% presumption.

Christensen v. Haley

The most recent published case addressing the presumption is Christensen v. Haley (In re Custody of M.J.H.), No. A16-1056, 2017 Minn. App. LEXIS 83 (Minn. Ct. App. July 3, 2017) (this is how you can currently find it), the appellate court addressed what Hagen set forward, the need for the district court to address the presumption when raised and the use of the best interest factors to demonstrate that the court properly addressed the presumption. The case was remanded to the district court to consider Christensen’s request for increased parenting time by applying the best interest standards.

The Takeaway

Both parents need to be aware of the presumption under Minn. Stat. §518.175 subd. 1(g). It is important that the party receiving parenting time raise the presumption so that it will be applied by the district court. It is the parent opposing the 25% parenting time presumption that has the burden of why it isn’t in the child’s best interest or that it isn’t feasible in that given situation. District courts are given broad discretion when it comes to parenting time issues, merely falling below the 25% presumption doesn’t necessarily mean that there is a restriction on parenting time. Hagen 783 N.W.2d 212, 218 (Minn. Ct. App. 2010) (citing Clark v. Clark, 346 N.W.2d 383 (Minn. Ct. App. 1984)).

If you have Divorce and Family Law questions, please contact the Family Law experts at Minneapolis based Lake Harriet Law Office at 612-750-4843.