Child Custody Dialogue

Background

For over 10 years, advocacy groups had introduced proposals to the Minnesota legislature that judges make child custody decisions starting from a presumption of joint physical custody and shared parenting time, with enumerated exceptions. A number of interest groups including the Family Law Section of the Bar Association and the Coalition for Battered Women opposed the use of a presumption in custody cases on the grounds that such complex decisions should be made based on the particulars of each case. The ongoing dispute had become a politically divisive issue, consuming extensive time and resources of legislators, advocates, and interest groups. In the 2012 session, both houses of the legislature passed a bill calling for a presumption of at least 35% parenting time for each parent. Governor Mark Dayton “pocket vetoed” the legislation and called for the opposing sides to work together to develop consensus on a solution. 

OCDR Problem Solving Process

Judge Bruce Peterson answered the Governor’s call and convened a group of stakeholders, selected Dr. Miki Kashtan of Bay Area Nonviolent Communication to serve as the facilitator and partnered with OCDR. A few years before Bruce had watched the state tackle child custody by creating a task force. “There was a very nice report, but it didn’t produce any resolution,” he says. “I was very distressed about all the energy that was poured into this issue year after year. I thought the veto was an opportunity to do something more productive.” The stakeholders laid a foundation by converting their arguments into shared principles that ranged from reducing familial conflict to developing evidence based solutions and creating a vision statement and framework for changes to the child custody system. Vision statement: Decisions should promote a child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents. The principles, vision and framework integrated the diverse concerns of the stakeholders and laid a foundation for action. The next steps was for subcommittees to put the principles into practice. 

Results

One committee developed legislation that passed unopposed in the 2014 session, but the most significant changes occurred in 2015 when the legislature passed the group’s revisions to the Best Interest Factors which assist family court in deciding primary physical custody after family dissolution. Minnesota Lawyer called the changes, “a complete overhaul of the custody and parenting time factors in Minnesota.” The package of bills passed the House of Representatives 121-0 and the Senate 61-3. The new Best Interest Factors aim to move courts from a parent-centered to a child-centered view: for example, the former first factor, “ the wishes of the parents, “ is replaced with a “a child’s physical, emotion, cultural, spiritual, and other needs,” The Minnesota Lawyer commented that the new law ”is catching up with the last 40 years’ worth of social science, in focusing on child development, conflict resolution, and the importance of both parents in the life of a child.” In keeping with the group’s vision statement, language was added that says “the court shall consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child’s needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures.” The redirection of decision-making to the unique needs of the child, along with statutory changes last year that permitted reserving a determination of changes in parenting time to correspond to the child’s changing developmental needs, will hopefully result in a reduction of the conflict between parents as they decide parenting time. This conflict has been exacerbated by the perception that the issue of custody was a win-lose contest between parents, and also by the perception that the temporary orders served as a template for the final orders. In addition to the Best Interest Factors, the group successfully secured passage of a number of other reforms designed to make custody decision more equitable for parents and more focused on promoting a child’s healthy growth and development. They included a legislatively created task force on child support. OCDR’s collaborative problem solving process, the facilitation skills of Dr. Kashtan, and Judge Peterson’s leadership helped these groups discover new ways to communicate, bridge differences, and develop solutions that met the needs of all involved. 

Participant Voices

“The trust that this process build has been quite amazing to me. I wouldn’t have believed it was possible, but we achieved more collaboratively than we were able to do as adversaries.”
State Representative Tim Mahoney (DFL)

“We discovered that if we take an issue we’re fighting over and dig deeper, we find a way to say things that can work for everyone.“
State Representative Peggy Scott (R) 

“I learned that a group of good hearted people can shift from just repeating position statements to joining together to solve each other’s problems.”
Judge Bruce Peterson, 4th Judicial District

“I know that there are other very emotionally charged issues out there, but this one had plenty of emotion and demonstrated that it’s possible. I went in thinking it was going to be a disaster and came out with hope.” 
Brian Ulrich, Center for Parental Responsibility volunteer

“I knew the process was working when I was part of this small group with perhaps the most avid advocates of equal parenting time (the policy that the American Academy of Matrimonial Lawyers had opposed) and we started coming up with baby steps that we could agree on.”
Michael Dittberner, American Academy of Matrimonial Lawyers President